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Stewart v. State3/9/1999
night-time incarceration sentence." Petitioner concluded the District Court only had the authority to require the Petitioner to complete his 120 nights sentence by serving the remaining nights and sought immediate release from DOC custody.
In his amended Order, Judge Freeman found that the District Court of Oklahoma County was without jurisdiction to entertain the "Writ of Habeas Corpus" on the ground that Petitioner was incarcerated in another county, and that the Writ failed to comply with the requirements of 12 O.S.1991, § 1332. Additionally, and in response to this Court's remand Order, Judge Freeman construed the "Writ of Habeas Corpus" as a post-conviction proceeding and made findings of fact and Conclusions of law.
Two findings are important to Petitioner's claim:
"(b) By the terms of the plea agreement the defendant was to either spend 120 nights in the Nightime Incarceration Program in the Oklahoma County Jail within 128 days following May 8, 1997, or, that failing, was to be sentenced to 10 years in the Oklahoma State Penitentiary. (emphasis added)
"(e) The defendant was advised of his rights to appeal his Judgment and Sentence . . . but the defendant did not thereafter file an application to withdraw his plea of guilty and did not appeal.
"Judge Freeman concluded (1) that the statute under which Petitioner was sentenced [22 O.S.1991, § 991a-2] had not been modified by the Legislature or by this Court; (2) that Petitioner failed to appeal; (3) that having failed to appeal, Petitioner was precluded from raising the issue in an application for post-conviction relief, and (4) that Petitioner's Judgment and Sentence was lawful as was his incarceration in a DOC facility."
On appeal, Petitioner reasserts his Judgment and Sentence "in Case No. CF 97-1817 is void, because the District Court exceeded its statutory authority and/or unconstitutionally applied Okla. Stat. Tit. 22 § 991a-2 (1991) when it sentenced Petitioner to ten (10) years imprisonment in the custody of the Department of Corrections." Petitioner admits he failed to comply with the sentence of night-time incarceration. However, he contends, despite his non-compliance, the statute makes no provision for sentencing a defendant to a term of years in the custody of the DOC after non-compliance; and, at most, the District Court had only the authority to require Petitioner to complete his 120 nights by serving the remaining nights. He argues the sentence of night-time incarceration "supplants" incarceration in DOC custody and the "District Court cannot delay sentencing pending compliance with the night-time incarceration program or impose another sentence when an offender fails to comply" with the night-time incarceration sentence. Petitioner cites no authority other than the statute, and additionally argues that other defendants from Oklahoma County have been afforded relief on the same issue and that he is being denied equal protection under the law.
For a writ of habeas corpus, a petitioner has the
burden of establishing confinement is unlawful. See Phillips v. Page, 451 P.2d 23, 24 (Okl.Cr.1969); Shelton v. State, 381 P.2d 324 (Okl.Cr.1963). Petitioner shall attach a certified copy of the Judgment and Sentence and the District Court order denying relief with his petition to meet his burden of proof. In the absence of an extreme emergency, this Court will not entertain an original application for a writ of habeas corpus where such application has not been presented to and refused by the District Court of the county where petitioner is restrained. In re Dykes, 13 Okl. 339, 74 P. 506, 507 (1903). . . .
Rule 10.6(C)(1), Rules of
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