Ex parte Gilmore

Ex parte Gilmore
1934 OK CR 116
36 P.2d 304
56 Okl.Cr. 201
Decided: 09/28/1934
Oklahoma Court of Criminal Appeals

(Syllabus.)

Costs - Satisfaction by Further Imprisonment.

Page 202

Original proceeding in habeas corpus by Oma Gilmore. Writ denied.

J.M. Roberts, for petitioner.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

EDWARDS, P.J. This is an original proceeding in habeas corpus. Petitioner alleges she is unlawfully restrained by the warden of the state penitentiary. That she was convicted in the district court of Craig county of robbery and her punishment fixed at a term of six years in the state penitentiary. That before trial she was held in the jail of Craig county for a period of more than eight months and that she is entitled to credit on her sentence for said period. That the costs assessed in her trial amounted to $172.92, which petitioner was ordered to pay, and that the judgment does not provide for imprisonment in the event of her failure to pay. That she has served the term of six years' imprisonment if given credit for jail time as set out and if the costs assessed against her be eliminated.

There is no provision of law by which this court, in a proceeding of this kind, may reduce a sentence of imprisonment by a credit of time served in jail before trial. With reference to the costs, section 3166, Okla. Stat. 1931, provides that in the prosecution of criminal actions, in case of conviction, the costs become a part of the penalty and shall be enforced by imprisonment. It is immaterial that the judgment does not specifically declare that the costs, if not paid, shall be satisfied by imprisonment. It is a part of the judgment, whether expressed therein or not.