WILLIAMS v. STATE

WILLIAMS v. STATE
1971 OK CR 452
490 P.2d 1122
Case Number: A-16336
Decided: 11/03/1971
Oklahoma Court of Criminal Appeals

An appeal from District Court of Oklahoma County; Clarence Mills, Judge.

This is an appeal from the denial of post conviction relief in the District Court of Oklahoma County. Defendant discharged from confinement for the reason that he did not receive a hearing on the motion to revoke his suspended sentence.

William Robert Williams, pro se.

Larry Derryberry, Atty. Gen., for respondents.

OPINION AND DECISION

BRETT, Judge.

¶1 On November 19, 1970, the above petitioner, William Robert Williams, filed his petition in this Court pro se, alleging that on May 20, 1965, he was convicted on a plea of guilty in the District Court of Oklahoma County in case number 30612, for the crime of armed robbery; and was sentenced to serve five (5) years in the State Penitentiary, which sentence was suspended by the Honorable W.P. Keen, Judge. He asserts further, that on July 10, 1970, he was arrested and informed that his suspended sentence had been revoked; and on July 14, 1970, he was transported to the State Penitentiary. Petitioner alleges further that he did not receive a hearing on the revocation of his suspended sentence and that his constitutional rights have been violated; and prays for discharge from the penitentiary.

¶2 The petition filed herein was styled "Application for a Writ of Habeas Corpus," but for the reason petitioner alleges therein that he filed a petition in the district court for Post Conviction Relief, under the provisions of 22 O.S.Supp. 1970 § 1080 [22-1080], which was denied, this Court treated the petition as an appeal from denial of Post Conviction Relief; entered a Writ of Certiorari and ordered that all the records pertaining to the revocation of petitioner's suspended sentence and post conviction proceedings be transmitted to this Court for review. Those records were filed in this Court on November 24, 1970.

¶3 From a review of the records submitted to this Court, petitioner is entitled to the relief being sought. The conditions of suspension, contained in the judgment and sentence provide the following:

(1) that said defendant shall not violate any law, but shall be a quiet, peaceful and law-abiding citizen;

(2) that said defendant shall refrain from habitually associating with lewd or vicious persons;

(3) that said defendant shall not indulge in vicious habits; and it is ordered that the defendant shall be required to report to the judge of this court as provided by law.

¶4 On some date thereafter an "Application to Revoke Suspended Sentence" was allegedly filed in the district court. The copy of said application filed with this Court does not contain a date and no filing date is shown thereon. The application to revoke merely recited as grounds for revocation: "Defendant has violated the terms of his suspended sentence."

¶5 On February 7, 1968, an alias warrant was received in the sheriff's office which set forth for the cause of arrest, "that William R. Williams, late of said county, did on or about the 30th day of January, 1968, at the County of Oklahoma, State of Oklahoma, commit the crime of, violated the terms of his suspended sentence, granted by Judge W.P. Keen, on the 20th day of May, 1965."

¶6 The records filed with this Court contain an Order Revoking Suspended Sentence dated January 7, 1969, which contains the filing stamp of the District Court Clerk, dated July 17, 1970. The receipt for petitioner's delivery to the State Penitentiary reflects that he entered that institution on July 14, 1970.

¶7 From our review of the records submitted to this Court, there is no positive showing that petitioner received a hearing when his suspended sentence was revoked. No response has been filed to the petition filed herein; and the application to revoke was not specific enough to sustain the order revoking petitioner's suspended sentence.

¶8 We are therefore of the opinion that petitioner is entitled to the relief being sought and is entitled to his immediate discharge from the State Penitentiary; and further, that full satisfaction of the judgment and sentence of May 20, 1965, in the District Court of Oklahoma County, case number 30612 is fully met, and no further demand under that judgment and sentence shall be required.

¶9 The Warden at the State Penitentiary is hereby ordered to immediately discharge William Robert Williams, OSP No. 80814, from further confinement upon receipt of a copy of this decision.

BUSSEY, P.J., concurs.