dissenting:
Respectfully, I dissent. At the outset of my dissent, I would like to emphasize the uncertainty in my mind concerning precisely what decision the Court has made in this case. If the Court’s decision stands for the proposition that the prisoner has been unalterably and unconditionally “discharged” from all restraints upon his freedom and his liberty as a consequence of his conviction, then, in this respect and in this extent, I dissent respectfully but quite earnestly.
Antecedent legal questions in this case were forcefully and convincingly urged in behalf of the state. These legal hurdles the Court has passed without apparent difficulty. My dissent relates only to the action of the Court in apparently holding that the prisoner is “discharged” without qualification.
In the present habeas corpus case, the Court was concerned solely with the right of the defendant to appeal from the judgment of the trial court entered upon the jury verdict by which the defendant was found guilty of the charge made against' him in the indictment. Nothing prior to the judgment of the court entered upon the jury’s verdict was before the Court for decision. So far as the record in this case disclosed, all stages of the criminal prosecution, including the arrest, the indictment, the trial and the jury’s verdict remained unchallenged and beyond the jurisdiction of this Court in the habeas corpus proceeding.
In recent decisions, this Court, in similar cases, has properly made a distinction between the judgment of a trial court entered upon a conviction, on the one hand, and, on the other hand, court proceedings preceding the conviction, whether the conviction was upon a plea of guilty or upon a jury verdict finding the accused guilty *25as charged. In State ex rel. Kennedy v. Boles, 150 W.Va. 504, 147 S.E.2d 391, the Court made the following statement in the second point of the syllabus: “* * * the judgment imposing sentence is unenforceable; and such indigent person, in a habeas corpus proceeding, is entitled to be released forthwith from custody under such judgment.” (Italics supplied.) The concluding portion of the opinion in that case is as follows: “* * * such judgment is unenforceable; and such indigent person, in a habeas corpus proceeding, is entitled to the relief for which he prays and will be released forthwith from custody under such judgment.” (Italics supplied.)
State ex rel. Bradley v. Johnson, 152 W.Va. 655, 166 S.E.2d 137, involved a proceeding in habeas corpus instituted in this Court in behalf of Bradley, who had been released in a habeas corpus proceeding in the Circuit Court of Kanawha County from a judgment imposing an indeterminate sentence of one to ten years imposed by the Intermediate Court of Kanawha County upon a jury verdict which found the defendant guilty of a charge of grand larceny. The defendant was released by the circuit court in the habeas corpus proceeding on the ground that he had been denied due process of law by reason of the failure of the trial court to furnish him a transcript of the proceedings of his trial in order to enable him to apply for an appeal. The circuit court, in granting the writ of habeas corpus, ordered that the convicted defendant be discharged from custody, but suspended the execution of the order entered in the habeas corpus proceeding for a period of sixty days in order to enable the state to make proper disposition of the case in a “constitutionally permissible manner.” Within the period of sixty days, the trial court set aside its former sentence and imposed upon the prisoner a like sentence with proper credit for time of imprisonment previously served by the prisoner pursuant to the former sentence. In a proceeding in habeas corpus instituted in behalf of the prisoner in this Court, it was contended that the trial court had no right to set aside the previous sentence' and *26to impose a like sentence with credit to the prisoner for the period of imprisonment served by the prisoner pursuant to the initial sentence.
In the Bradley case, this Court held that the second sentence was valid, irrespective of the fact that Section 7 (c) of Article 4A, Chapter 53, Code, 1931, as amended, was not applicable to the case. In so deciding, the Court stated (152 W.Va. 661, 166 S.E.2d 141):
“As the intermediate court, after setting aside the void judgment of November 29, 1967, had jurisdiction of the criminal proceeding and the power and authority to grant the petitioner a new trial or, as it did in lieu of a new trial, to resentence the petitioner to confinement in the penitentiary for a term of not less than one year or more than ten years with credit for the specified time served, and thus to restore and make available to the petitioner his right to apply for an appeal from such judgment, which is all he could have done if the transcript of the record of his trial had been seasonably furnished to him, the final judgment of imprisonment rendered by the intermediate court of October 14, 1968, is a valid and effective judgment and is enforceable against the petitioner. It follows that the relief which the petitioner seeks in this proceeding must be and it is denied, that the writ heretofore issued in this proceeding is discharged, and that the petitioner be and he is remanded to the custody of the defendant to serve in the manner provided by law the sentence imposed upon him on October 14, 1968.”
For reasons stated in this dissenting opinion, I would have added to the Court’s opinion a sentence stating, in effect, that the prisoner was discharged subject to the right of the state to proceed further in accordance with this Court’s decision in the Bradley case.
I am authorized by Judge Berry to state that he concurs in the views expressed in this dissenting opinion.
*27Caplan, Judge:On the rehearing of this proceeding heretofore granted, full consideration has been given to the reasons presented in the written briefs filed in support of the respective positions of the parties. Careful review and reexamination of the majority opinion, in which two judges dissented, justify the conclusion that the legal principles enunciated in that opinion were correct and free from error, but, that in the disposition of the case, the majority opinion should be and is modified so as to conform to the recent decisions of this Court involving a denial of a free transcript for appeal purposes. Accordingly, the original opinion and the prefixed syllabus points are approved, adhered to and adopted as the decision of this Court in this proceeding and the prisoner is ordered to be discharged. However, such discharge is ordered stayed for a period of thirty days from the date of this opinion on rehearing to permit resentencing of the petitioner, if the state so chooses. See State ex rel. Bratcher v. Cooke, Sheriff, 155 W.Va. 850, 188 S.E.2d 769; State ex rel. Koton v. Coiner, Warden, 155 W.Va. 668, 187 S.E.2d 209. State ex rel. Bradley v. Johnson, 152 W.Va. 655, 166 S.E.2d 371.
Judge Haymond participated in the decision of this case but his death occurred prior to the preparation of this opinion. Judges Haden and Kessel did not participate in the consideration or decision of this case.