Salisbury v. Raines

1961 OK CR 119, 365 P.2d 568, 1961 Okla. Crim. App. LEXIS 196

Opinion

BUSSEY, Judge.

This is an original application for a writ of habeas corpus by Theodore Deforest Salisbury seeking his release from the State Penitentiary at McAlester, Oklahoma, where he is currently confined by reason of a judgment and sentence rendered against him by the Honorable Raymond W. Graham, Judge of the District Court of Tulsa County, Oklahoma.

The petitioner’s sole contention is that the judgment and sentence is void by reason of its uncertainty. In support of this contention the petitioner has attached a photostatic copy of the original judgment and sentence which provides that petitioner be confined in the State Penitentiary for a term of four years and further provides that: “Defendant to be given credit for the time spent in county jail, pending trial.” Petitioner urges that the addition of the statement above quoted invalidates the judgment and sentence. In State ex rel. Waters v. Lackey, 97 Okl. Cr. 41, 257 P.2d 849, this court held that a trial judge is without authority to allow a prisoner credit for time served prior to the imposition of judgment and sentence and that the only method whereby the court may take into consideration the time of imprisonment prior to judgment and sentence is when it imposes said judgment and sentence. In view of the authority above cited we are of the opinion that the phrase “Defendant to be given credit for the time spent in county jail, pending trial,” was mere surplusage and did not invalidate the judgment and sentence.

The writ is accordingly denied.

NIX, P. J., and BRETT, J., concur.