FILED 

March 14, 2018 Ketchum, J. Dissenting. State v. Jedediah C., Case No. 16-1067. released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

The circuit court violated the Defendant’s rights under the Double Jeopardy 

and Equal Protection Clauses of the West Virginia Constitution by denying him credit for 

time served on home incarceration. It is undisputed that the Defendant was subject to all 

the restrictions placed on offenders under the Home Incarceration Act [W.Va. Code § 62-

11B-1 to -13]. Yet, the majority held that he was not entitled to credit for time served 

simply because his home incarceration was imposed before his conviction, as opposed to 

after his conviction. The majority’s holding is based upon a distinction without a 

difference, and therefore, I dissent. 

We have held that a defendant has a constitutional right, under the Double 

Jeopardy and Equal Protection Clauses of the West Virginia Constitution, to credit for 

time served in jail before a conviction against a term of incarceration imposed after 

conviction. Syl. Pt. 6, State v. McClain, 211 W.Va. 61, 561 S.E.2d 783 (2002). We 

afford the same treatment to defendants placed on home incarceration after a conviction 

under the Home Incarceration Act. Syl. Pt. 3, State v. McGuire, 207 W.Va. 459, 533 

S.E.2d 685 (2000). The reason behind this similar treatment is simple: a person placed 

on home incarceration after a conviction under the Home Incarceration Act is subject to 

numerous restrictions under W.Va. Code § 62-11B-5, and thus, home incarceration under 

the Act is penal. 

In this case, the Defendant’s term of home incarceration as a condition of 

pretrial bail was also penal. It is undisputed that he was subject to all of the restrictions 

placed on defendants after a conviction under the Home Incarceration Act. Thus, his 

home incarceration was as restrictive on his liberties as a sentence of postconviction 

home incarceration, which entitles him to credit for time served. Moreover, the circuit 

court’s stated reason behind denying the Defendant credit for time served was the judge’s 

belief that the Defendant had benefitted enough from his plea bargain with the State and 

that his punishment should not be further shortened by giving him credit for time served. 

Yet, the majority relies on a general distinction we have made between 

home incarceration after a conviction under the Home Incarceration Act and home 

incarceration as a condition of pretrial bail under W.Va. Code § 61-1C-2. The majority 

believes that home incarceration as a condition of pretrial bail under W.Va. Code § 61-

1C-2 is not penal in nature. The majority stated that: “the purpose of pre-trial bail is not 

to punish, but rather it acts as security for the appearance of a defendant to answer to the 

specific criminal charge[.]” (Internal quotations, citations, and emphasis omitted). They 
 

conclude that, because the purpose of home incarceration as a condition of pretrial bail is 

not penal, a circuit court has discretion under our holding in Syllabus Point 4 of State v. 

Hughes, 197 W.Va. 518, 476 S.E.2d 2d 1889 (1996) and W.Va. Code § 62-11B-11(b) to 

deny credit for time served while on home incarceration as a condition of pretrial bail. 

The majority’s reliance on this distinction ignores the fact that the 

Defendant’s pretrial home incarceration was penal, as reflected by the fact that he was 

subject to the postconviction home incarceration restrictions enumerated in W.Va. Code 

§ 62-11B-5. Thus, the Defendant’s pretrial home incarceration was effectively the same 

as home incarceration after a conviction under the Home Incarceration Act. The 

restrictions of his home incarceration were not different merely because they were 

imposed before he was convicted. Yet, the majority draws an artificial line separating his 

pretrial home incarceration from postconviction home incarceration, in which a defendant 

is indisputably entitled to credit for time served. 

The holding in this case clearly violates the Double Jeopardy and Equal 

Protection Clauses of the West Virginia Constitution. Our holding in State v. McGuire, 

supra should be expanded to clarify that defendants sentenced to home incarceration as a 

condition of pretrial bail have a constitutional right to credit for time served when they 

are subject to the restrictions enumerated in W.Va. Code § 62-11B-5.