547 P.2d 391 (Okla.Crim.App. 1976), PC--76--37, Ellington v. Crisp

Docket Nº:PC--76--37.
Citation:547 P.2d 391
Party Name:Gary Wayne ELLINGTON, Appellant, v. Richard CRISP, Warden, and the State of Oklahoma, et al., Appellees.
Case Date:March 09, 1976
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 391

547 P.2d 391 (Okla.Crim.App. 1976)

Gary Wayne ELLINGTON, Appellant,

v.

Richard CRISP, Warden, and the State of Oklahoma, et al., Appellees.

No. PC--76--37.

Court of Criminal Appeals of Oklahoma.

March 9, 1976.

Robert G. Haney, Miami, for appellant.

Larry Derryberry, Atty. Gen., for appellees.

OPINION

BLISS, Judge.

Appellant, Gary Wayne Ellington, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Ottawa County, Case No. CRF--71--199, for the offense of Armed Robbery in violation of 21 O.S. 1971, § 801. Pursuant thereto he was sentenced to a term of twenty (20) years' imprisonment, and his judgment and sentence was affirmed on appeal by this Court in Ellington v. State, Okl.Cr., 516 P.2d 287 (1973). Subsequently, the defendant filed an application for post conviction relief in the District Court, Ottawa County, which upon hearing was denied on the 22nd day of December, 1975. From this denial the defendant has perfected a timely appeal to this Court.

The defendant's sole assignment of error asserts he was deprived of his right to a speedy trial in the proceedings resulting in his conviction for armed robbery. The brief in support of defendant's application for post conviction relief states that the

Page 392

defendant raised the same contention through his attorney, Fred H. DeMier, by filing a habeas corpus action prior to the trial which upon hearing was denied by the trial court. In response to the defendant's application for post conviction relief in the District Court, the State requested the trial court deny the application for the reason that defendant had previously raised the issue by writ of habeas corpus and defendant had failed to raise the issue again at trial or on appeal, citing Reynolds v. Sunderland, Warden, et al., H--75--327, Okl.Cr. (46 O.B.A.J. 1267, 1975). Therefore, the State concludes the defendant could not raise in a post conviction proceeding the identical question which he could have had reviewed on appeal.

The availability of relief is controlled by the applicable statute, 22 O.S. 1971, § 1080 et seq. and Rule 4 of the Rules of this Court. Title 22 O.S. 1971, § 1080, provides:

'Any person who has been convicted of, or sentenced for, a crime and who claims:

'(a) that the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or...

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