Barr v. Crisp

1976 OK CR 262, 555 P.2d 1070

• Court: Court of Criminal Appeals of Oklahoma
• Decided: October 25, 1976
• Docket: No. 11-76-784
• Status: Published

Opinion

OPINION

BUSSEY, Judge:

William David Barr, hereinafter referred to as Petitioner, has filed a Writ of Habeas Corpus in the above styled and numbered cause, in which he alleges the following:

On February 4, 1974, Petitioner entered a plea of guilty to the crime of Auto Burglary in the District Court, Tulsa County, Case No. CRF-73-2201. Thereafter, on the 1st day of May, 1974, he was convicted in the District Court, Comanche County, Case No. CRF-73-817, for the crime of Burglary in the Second Degree, After Former Conviction of a Felony. In the Tulsa County case Petitioner received a sentence of five (5) years’ imprisonment, and in the Comanche County case, he received a sentence of fifteen (15) years’ imprisonment.

On May 13, 1974, Petitioner commenced serving said fifteen (15) year sentence in Comanche County Case No. CRF-73-817, and was billed into the penitentiary under that case as inmate #88131. Petitioner appealed the Comanche County case and on February 18, 1975, this Court reversed and remanded said case for a new trial. See, Barr v. State, Okl.Cr., 531 P.2d 1399 (1975). On the 7th day of April, 1975, the District Court, Comanche County, dismissed case No. CRF-73-817, a copy of said dismissal is attached hereto and made a part hereof, and the original of said dismissal is attached to the copy of this Opinion which is to be sent to the Warden of the State Penitentiary.

On March 13, 1975, Petitioner was re-billed into the Oklahoma State Penitentiary under inmate number 88131-1, and commenced serving the five (5) year sentence for the crime of Auto Burglary from the District Court, Tulsa County, Case No1. CRF-73-2201.

Petitioner contends, and attaches to his pleadings, a certified copy of the Court Clerk of Comanche County, setting forth that Petitioner spent a total of 134 days in the Comanche County Jail, on what is now considered to be a void judgment and sentence, and that said 134 days should be credited toward his Tulsa County ■ sentence of five (5) years’ imprisonment. He relies on Floyd v. State, Okl.Cr., 540 P.2d 1195.

We are of the opinion that Petitioner should be granted the 134 days spent in the Comanche County Jail as credit toward the completion of his five (5) year sentence in Tulsa County Case No. CRF-73-2201, and direct that the prison authorities correct his records to reflect the same.

For the reasons above set forth, Petitioner is granted the 134 days spent in the Comanche County Jail as credit toward the completion of his five (5) year sentence in Tulsa County Case No. CRF-73-2201.

BRETT, P. J., and BLISS, J., concur.

APPENDIX

IN THE DISTRICT COURT OF COMANCHE COUNTY STATE OF OKLAHOMA

THE STATE OF OKLAHOMA, ' PLAINTIFF VS. WILLIAM DAVID BARR, DEFENDANT

MOTION TO DISMISS

Comes now, the duly elected, qualified and acting District Attorney of Comanche County, Oklahoma, and requests the Court to dismiss the above styled and numbered cause for the following reasons:

(1) On the 1st day of May, 1974, the defendant, William David Barr, was tried and convicted for the offense of Burglary in the Second Degree. After Former Conviction of a Felony, 21 O.S. 1971 S 1435.

(2) All of the evidence used at the trial to connect the defendant with the crime charged was discovered after the defendant was stopped by the arresting officer, (including the identification of the defendant as the driver of the stolen automobile) .

(3) The defendant prefected a timely appeal to the Oklahoma Court of Criminal Appeals which REVERSED AND REMANDED this case to the District Court for retrial. The Court of Criminal Appeals further instructed the trial court to suppress any and all evidence derived as a result of the search of defendants’ person or automobile, including evidence observed in plain view and verbal testimony.

(4) Without said evidence the State of Oklahoma would be unable to connect the defendant with the crime.

WHEREFORE, the plaintiff prays that the above styled and numbered case charging William David Barr with the crime of Burglary in the second degree, after former conviction of a Felony be dismissed.

ORDER

Now on this 7th day of April, 1975, upon Motion of the Assistant District Attorney, Richard Robertson, the Court finds and hereby orders that the above styled and numbered case should be dismissed.