Baker v. State

1973 OK CR 406, 514 P.2d 943, 1973 Okla. Crim. App. LEXIS 810

Opinion

OPINION

BLISS, Presiding Judge:

In the District Court of Oklahoma County, Case No. 35531, appellant, John Dale Baker, hereinafter referred to as defendant, was convicted for the offense of Grand Larceny. His punishment was fixed at four (4) years imprisonment and from said judgment and sentence, he perfected an appeal to this Court, Case No. A-15354, wherein this Court dismissed his regular appeal. Thereafter, defendant filed application for post-conviction relief in the District Court of Oklahoma County and from the District Court’s denial of post-conviction relief, upon this Court’s granting permission to file out of time, defendant perfected an appeal to this Court.

Defendant alleges one proposition of error, that being his punishment was improperly imposed as the court instructed on and the prosecutor commented on, good time credits at the punishment stage of his trial. We have carefully studied the transcript of the trial proceedings and find defendant’s assignment of error to be meritorious. The record clearly shows the prosecutor commented upon the court’s instruction on good time credits, over defendant’s objection, at the second stage of a two-stage proceeding. The giving of such instructions is error. Williams v. State, Okl.Cr., 461 P.2d 997. Therefore, the judgment and sentence is modified to a term of two and one-half (2½) years imprisonment, and as so modified, the judgment and sentence is affirmed.

BUSSEY, and BRETT, JJ., concur.