Floyd v. State9/4/1975
The opinion of the court was delivered by: BLISS, Judge.
In the District Court, Garfield County, Case No. CRF-69-193, petitioner was convicted for the offense of Forgery, Second Degree, and pursuant thereto was sentenced to a term of three (3) years' imprisonment, said sentence being suspended. Thereafter, on the 14th day of January, 1970, petitioner's suspended sentence was revoked and, consequently, he was billed into the State penitentiary on the 15th day of January, 1970. Thereafter, on the 21st day of December, 1970, petitioner was paroled. Subsequently, in the District Court of Garfield County, Case No. CRF-72-13, petitioner, upon a plea of guilty, was convicted of Uttering and Passing a Bogus Check and, pursuant thereto, was sentenced to a term of ten (10) years' imprisonment. Petitioner was then billed into the Oklahoma State Penitentiary on the 31st day of January, 1972, under CRF-72-13. Subsequently, on the 4th day of February, 1972, the petitioner's parole, in Case No. CRF-69-193, was revoked. On the 30th day of April, 1975, the petitioner's conviction in Case No. CRF-72-13 was vacated, set aside and held for naught by this Court in Floyd v. State, Okl.Cr., 535 P.2d 306 (1975). Thereafter, on the 24th day of June, 1975, the District Attorney of Garfield County dismissed charges against petitioner in Case No. CRF-72-13, and subsequently the petitioner, on the 26th day of June, 1975, was billed into the Oklahoma State Penitentiary to satisfy the sentence in Case No. CRF-69-193. Petitioner prays the time served upon the reversed conviction, in Case No. CRF-72-13, be applied towards satisfaction of the sentence rendered in CRF-69-193.
An examination of the Oklahoma cases dealing with crediting time served under a judgment and sentence which is later, on appeal, reversed or held void compels us to clarify the law on this subject as the cases undoubtedly have created some confusion. We will deal specifically with the contingencies which might occur and thereby cause difficulty in this area. We note the Fourth Circuit, in Miller v. Cox, 443 F.2d 1019 (1971), delineated and distinguished three situations in which this issue may arise. In pertinent part, the Circuit Court found:
"The question may arise in a variety of situations which need to be distinguished. Where a conviction is set aside and the prisoner is then retried and convicted of the same offense, the Supreme Court has held that the time served under the voided conviction must be credited toward the subsequently imposed sentence. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This result was dictated by the constitutional prohibition against multiple punishment for the same offense, a concept embodied in the Double Jeopardy clause of the Fifth Amendment.
"A second and distinct situation is presented where a prisoner serving consecutive sentences on several convictions succeeds in having one of the sentences invalidated after it has been fully or partially served. In this instance there is no question of multiple punishment for the same offense. Nevertheless, this court held in Tucker v. Peyton, 357 F.2d 115 (4th Cir. 1966), that the state must credit the sentences remaining to be served on the valid convictions with the time served under the voided conviction. We emphasized that all that was involved was an adjustment of the administrative records of the prison authorities so that service on the remaining valid sentences would commence at an earlier date. 357 F.2d at 117. Common sense and fundamental fairness require that under such circumstances the state should not ignore the period of imprisonment under the invalid se
Page 1 2 3 Oklahoma DUI Attorneys
DUI Lawyers
|