Ex parte Weisband

Ex parte Weisband
1940 OK CR 64
102 P.2d 888
69 Okl.Cr. 315
Decided: 05/16/1940
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Punishment-Defendant Entitled to Credit for Time Served in Jail Pending Appeal After Being Surrendered by Sureties on Appeal Bond. Where the defendant is committed to jail by order of the court pending an appeal to this court to serve the sentence from which the appeal has been taken and the commitment is issued by the court by reason of the fact that the sureties on his appeal bond have surrendered the defendant to the sheriff for the purpose of securing their release from the appeal bond, the defendant is entitled to credit on his sentence for all time served by him under said commitment.

2. Same-Plea of Guilty to Other Charges While Serving One Sentence Pursuant to Commitment-Term to be Cumulative. If the defendant enters his plea of guilty to other charges while he is serving his time on one sentence pursuant to a commitment, the time within which he must serve the sentence pronounced in those cases in which he enters his plea of guilty must commence after he has served his sentence in the case in which he stands committed.

Petition by Max Weisband for writ of habeas corpus to obtain release from jail on ground petitioner had served his sentence and had paid the fine imposed. Writ granted.

Irvine E. Ungerman and Holly Anderson, both of Tulsa, for petitioner.

Mac. Q. Williamson, Atty. Gen., Sam Lattimore, Asst. Atty. Gen., and Gleason McDonald, Asst. Co. Atty., of Tulsa, for respondent.

PER CURIAM. The petitioner was convicted in the common pleas court of Tulsa county with the offense of illegal possession of intoxicating liquor. Upon appeal to this court the conviction was affirmed and the sentence modified by decreeing that the petitioner should serve 60 days in the county jail and pay a fine of $300. Weisband v. State, 69 Okla. Cr. 79, 100 P.2d 297.

Page 316

The petitioner has filed his petition for a writ of habeas corpus, alleging that pending the appeal of this cause and, to wit, on April 11, 1939, he was surrendered by the sureties on his appeal bond to the sheriff of Tulsa county, and that the common pleas court of Tulsa county entered an order on that date committing him to jail to serve the sentence in the case which had been appealed to this court. While the petitioner was being held in jail, to wit, on May 4, 1939, he entered his plea of guilty to three charges then pending against him in the court of common pleas of Tulsa county and was sentenced to serve 90 days in jail and to pay a fine of $50 in each of these cases, the sentences to run concurrently. The petitioner remained in jail for 84 days, from April 11, 1939, at which time he was released by the making of a new appeal bond in the case which had been appealed to this court. Upon the filing of the mandate in Weisband v. State, 69 Okla. Cr. 79, 100 P.2d 297, the petitioner was again committed to jail, whereupon he filed his petition herein seeking his release from imprisonment for the reason he had already served his sentence as modified by this court.

The defendant is entitled to credit on the sentence pronounced in Weisband v. State, supra, for the time he served in jail under the commitment in said cause, issued on April 11, 1939. Ex parte Williams, 63 Okla. Cr. 395, 75 P.2d 904.

If the defendant enters his plea of guilty to other charges while he is serving his time on one sentence pursuant to a commitment, the time within which he must serve the sentence pronounced in those cases in which he enters his plea of guilty must commence after he has served his sentence in the case in which he stands committed.