Salisbury v. Raines

Salisbury v. Raines
1961 OK CR 119
365 P.2d 568
Case Number: A-13086
Decided: 11/29/1961
Oklahoma Court of Criminal Appeals

¶0 Syllabus by the Court

1. Punishment for crime does not begin until after the accused has been convicted and sentenced; any imprisonment endured prior to conviction and sentence will not inure to the benefit of such person as part of his punishment.

2. In a criminal case, after a conviction, the trial court in imposing Judgment and sentence, may take into consideration the time of imprisonment prior thereto, but such is not a matter of right of the prisoner, or of authority of the trial court under the law, but is a matter of the trial court's discretion only, and the granting of credit for the same as such, is not within its authorized statutory limits, but such authority is purely within executive clemency powers.

3. A judgment and sentence regular in form and in all other respects is not invalidated by an inclusion that the "Defendant to be given credit for time spent in county jail, pending trial," for this is mere surplusage.

An application for a writ of habeas corpus by Theodore Deforest Salisbury. Writ denied.

Theodore Deforest Salisbury, McAlester, pro se.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Ass't Atty. Gen., for respondent.

BUSSEY, Judge.

¶1 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.

¶2 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 ref. 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.

¶3 The writ is accordingly denied.

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