Bailey v. Oklahoma

1968 OK CR 225, 448 P.2d 288, 1968 Okla. Crim. App. LEXIS 457

Opinion

PER CURIAM:

This is an original proceeding in which Billy Frank Bailey petitions this Court for a writ of habeas corpus or post-conviction appeal. The single challenge to the judgment and sentence offered by Petitioner is that his sentence is excessive in view of the fact that his co-defendants, both with previous records, received five year sentences while Petitioner, with no previous record, received a ten year sentence.

The records indicate that on September 1, 1965, Petitioner, while represented by counsel, entered a plea of guilty to the charge of first degree robbery in the District Court of Oklahoma County, Oklahoma, case No. 30955, and received a ten year sentence with eight and one-half years suspended. On March 2, 1967, the District Court entered an order revoking the suspended portion of the sentence. Since the only basis on which the Petitioner seeks a writ of habeas corpus or post-conviction appeal is based upon the allegation of an excessive sentence, we find that the application must be dismissed. As this Court held in Williams v. State, Okl.Cr., 392 P.2d 65:

“The question as to whether or not the sentence imposed is cruel, excessive, and unjust will not be considered by this court on a writ of habeas corpus, this being a question that could only be reviewed on appeal.”

For the foregoing reasons the application for writ of habeas corpus or post-conviction appeal is denied. Writ denied.

This application was assigned to the Referee, Mr. PENN LERBLANCE, by the Presiding Judge of this Court. The foregoing findings of fact and conclusions of law were submitted by the Referee and approved and adopted by the Court.