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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term _______________ No. 11-0977 _______________ STATE OF WEST VIRGINIA,
Petitioner
v. ELLIOT FITZSIMMONS,
Respondent
____________________________________________________________ Appeal from the Circuit Court of Ohio County
The Honorable Arthur M. Recht, Judge
Case No. 10-F-54
Affirmed in Part, Reversed in Part, and Remanded
____________________________________________________________ Submitted: April 9, 2013
Filed: May 17, 2013


FILED
May 17, 2013 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

Gerald G. Jacovetty, Jr., Esq. Wheeling, West Virginia Counsel for the Petitioner

Patrick Morrisey, Esq. Attorney General Laura Young, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent

The Opinion of the Court was delivered PER CURIAM.

SYLLABUS BY THE COURT

1.

"In reviewing challenges to findings and rulings made by a circuit

court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syllabus Point 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

2.

"It is a violation of the Double Jeopardy Clause of the West Virginia

Constitution, Article III, Section 5, to fail to credit the time served at a detention center under W.Va.Code, 25-4-6, when pursuant to this section a prisoner is found unfit to remain at a detention center, is returned to the court which committed him, and is sentenced for the crime for which he has been convicted." Syllabus Point 2, State v. Hersman, 161 W. Va. 371, 242 S.E.2d 559 (1992).

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Per Curiam: The instant case is before the Court upon the appeal of Petitioner, Elliot Fitzsimmons, from a May 16, 2011, order of the Circuit Court of Ohio County which denied Petitioner's request for a continuance and for discovery, upheld the expulsion of the Petitioner from the program at the Anthony Center for Youthful Offenders, and denied Petitioner's motion for credit for time served at the Anthony Center. In this appeal, Petitioner alleges that the circuit court erred in denying the request of the Petitioner for a continuance of the April 28, 2011, evidentiary hearing so that discovery could be conducted; in upholding the decision of the warden finding Petitioner unfit for the Anthony Center facility; and in denying his request that he be given credit for time served. Upon examination of the parties' briefs, the submitted appendices, and the arguments of counsel, this Court concludes that the circuit court did not err in denying Petitioner's motion for continuance and discovery and in upholding the warden's decision to expel the Petitioner from the Anthony Center Youthful Offenders Program. However, we determine that the circuit court erroneously denied the Petitioner's request for credit for time served. Accordingly, as explained more thoroughly below, we affirm in part, and reverse in part, the May 16, 2011, order of the circuit court and remand this matter for further proceedings consistent with this Opinion.

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I.
FACTUAL AND PROCEDURAL BACKGROUND
On or about May 10, 2010, Petitioner was indicted by the Ohio County, West Virginia Grand Jury through a four-count Indictment charging him with one count of entering without breaking, one count of conspiracy, one count of burglary and one count of grand larceny. On July 26, 2010, Petitioner entered a plea of guilty to Count 1 of the Indictment which charged "Entering Without Breaking." Paragraph 3 of the plea agreement stated that the Petitioner's sentence of one to ten years in the penitentiary would be suspended in lieu of his being placed at the Anthony Center for Youthful Offenders. The Petitioner was sentenced on August 9, 2010, to not less than one nor more than ten years for the entering without breaking conviction. The court thereafter suspended the sentence and ordered the Petitioner to be placed at the Anthony Center and dismissed the Petitioner's remaining charges. Petitioner was placed at the Anthony Center on August 11, 2010.

Following a lengthy string of institutional violations, the Multidisciplinary Unit Team at the Anthony Center reviewed the Petitioner's file. Shortly thereafter, based upon the review, the warden determined that the Petitioner was unfit to continue his placement at that facility. On February 11, 2011, an order was entered by the circuit court transferring Petitioner from the Anthony Center and returning him to the West Virginia Northern Regional Jail. The basis of the warden's termination of the Petitioner's 2


placement in the Anthony Center Youthful Offenders Program was multiple write-ups. On February 14, 2011, Anthony Center Associate Warden of Security, Mark Wegman, issued a report detailing the Petitioner's disciplinary violations. In the report, eighteen violations were listed including ten instances of "Refusing an Order," one instance of "Insubordination/Insolence," one instance of "Creating a Disturbance," one instance of "Contraband," two instances of "Unauthorized Communication," one instance of "Bucking Line," one instance of "Fraudulent Representation," and one instance of "Attentiveness."

Thereupon, the circuit court scheduled a hearing for April 28, 2011, as required by West Virginia Code

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