Anderson v. Anderson

1973 OK CR 305, 513 P.2d 345

• Court: Court of Criminal Appeals of Oklahoma
• Decided: June 28, 1973
• Docket: H-73-132
• Status: Published

Opinions

OPINION

BLISS, Presiding Judge:

In the District Court of Oklahoma County, Case No. 3228S, petitioner was convicted for the offense of Robbery With a Dangerous Weapon, and sentenced to fifteen (15) years imprisonment. On May 30, 1973, this Court handed down an opinion, Anderson v. State, Okl.Cr., 510 P.2d 998 (1973), reversing and remanding the above conviction. In an order dated June 15, 1973, upon application of the Oklahoma County District Attorney, the District Court of Oklahoma County dismissed the above case. Petitioner, upon that dismissal began serving a ten (10) year term of imprisonment upon a conviction entered subsequent to the above armed robbery conviction. Petitioner prays the time served upon the reversed conviction be applied to the subsequent conviction.

In support of petitioner’s argument, he is entitled to the above mentioned credit, he submits the case of Lamb v. Page, Okl.Cr., 482 P.2d 615 (1971). Before noting the application of Lamb, supra, to the instant circumstance, we first note the authority of Evans v. Page, Okl.Cr., 465 P.2d 771 (1970). In the Evans case the following-language is found:

“The applicable rule of this court was announced in Dorrough v. Page, Okl.Cr., 450 P.2d 520 (1969):

‘Time served by a defendant under a void judgment and sentence will not be credited upon another sentence imposed upon defendant under a judgment and sentence for an entirely different offense.’ 450 P.2d at 520.

“This same rule has been applied in other jurisdictions and we are unaware of any contrary superceding decision or constitutional prohibition. See: People v. Kowalsky, 2 N.Y.2d 949, 162 N.Y.S.2d 355, 142 N.E.2d 421; Montford v. Wainwright, 162 So.2d 663 (Florida 1964); State v. Rhodes, 77 N.M. 536, 425 P.2d 47; 24 B C.J.S. Criminal Law § 1995(4). Thus, petitioner cannot credit time served under the narcotics case, No. 23552, toward satisfaction of the sentence in the forgery case, No. 22911.”

In construing Lamb, supra, with the weight of Oklahoma authority, this Court finds the Lamb case is applicable only to the circumstances in that case. It serves as an order applicable to that case only and is not to be construed to have changed the Oklahoma rule upon this point of law. For that reason, we find petitioner is not entitled to apply the prison time served on the robbery conviction to the subsequent offense upon which he was convicted. Therefore, petitioner’s Writ of Habeas Corpus is denied.