EX PARTE COLBERT

EX PARTE COLBERT
1951 OK CR 114
235 P.2d 541
94 Okl.Cr. 300
Case Number: A-11617
Decided: 09/05/1951
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Judgment and Sentence Time Spent in Jail Awaiting Sentence Not Part of Judgment. The time spent in jail awaiting trial or sentence cannot, in absence of statute, be considered as part of any judgment subsequently pronounced, and it is not embraced within any penalty imposed.

2. Same Trial Part of Judgment Going Beyond Jurisdiction of Court a Nullity and Disregarded. Where a case is tried without a jury, or where tried before a jury which has been unable to agree on the penalty and the same is left to be fixed by the court, such court has no authority to give credit for time spent in jail by defendant awaiting trial or sentence, and where the record discloses that the court has ordered such credit be given, that part of the judgment being beyond the jurisdiction of the court, the same will be treated as a nullity and disregarded.

3. Same Granting of Credit for Time Spent in Jail Awaiting Trial Matter of Sole Jurisdiction of Governor Under Constitution. Where the penalty has been fixed by either jury or trial judge, the granting of credit for time spent in jail awaiting trial or sentence is a matter within the sole and exclusive jurisdiction of the Governor under Constitution to grant reprieves, paroles, and pardons for all offenses except impeachment. O.S.Supp. Const. Art. 6. § 10.

Original proceedings in habeas corpus by Edward Andrew Colbert and Arthur LeRoy Hall to secure their release from the State Penitentiary. Writ denied.

Edward Andrew Colbert and Arthur LeRoy Hall, pro se.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.

POWELL, J.

Petitioners seek a writ of habeas corpus, setting out that they have each been illegally confined in the State Penitentiary at McAlester, since July 1, and July 2, 1951, respectively. The case has been advanced on the docket for opinion.

It is set out that the petitioners, Edward Andrew Colbert and Arthur LeRoy Hall, were each sentenced by the district court of Pontotoc county, in case No. 3930, on the 27th day of September, 1950, to two years in the penitentiary for the crime of second degree burglary, but that it was stipulated by the court, Hon. Hoyt Driskill, that petitioners were each to be given credit for 170 days jail time "by reason of confinement in the county jail prior to being sentenced in said case." It will be noted that the sentence imposed was the minimum under the law. Title 21 O.S. 1941 § 1436 [21-1436].

The Attorney General has filed a response on behalf of the warden of the penitentiary, and it is admitted that the judgment and sentence as to each of said appellants contains the recital alleged, but it is stated, "that respondent has refused to grant said credit for the reason that neither the court pronouncing said sentence nor any other court has authority to give or order such credit for jail time; that such credit constitutes a matter of clemency and can only be given upon the order and direction of the Governor of this State."

The case of Ex parte Tarta, 94 Okla. Cr. 103, 231 P.2d 709, is cited. That case is exactly in point and decisive of the issues here interposed, and may be referred to for a full discussion of the rules involved.

Page 301

The writ is accordingly denied.

BRETT, P.J., and JONES, J., concur.