Bass v. State, A--16360
| Decision Date | 22 October 1971 |
| Docket Number | No. A--16360,A--16360 |
| Citation | 489 P.2d 1343 |
| Parties | Neil Alton BASS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
A plea of double jeopardy is abandoned by subsequent entry of a plea of guilty which is knowingly and intelligently entered, with full knowledge of the nature and consequence of such plea, while the defendant is represented by counsel.
An appeal from the District Court of Oklahoma County; Jack R. Parr, Judge.
Neil Alton Bass entered a plea of guilty to the crime of Obtaining Narcotics by Fraud and Deceit his punishment was fixed at two years imprisonment in the state penitentiary, and he appeals. Affirmed.
Don Anderson, Public Defender, for plaintiff in error.
Larry Derryberry, Atty. Gen., Sondra Leah Fogley, Asst. Atty. Gen., for defendant in error.
Neil Alton Bass, hereinafter referred to as defendant, entered a plea of guilty in the District Court of Oklahoma County, Case No. CRF-70-2841, to the offense of Obtaining Narcotics by Fraud and Deceit; his punishment was fixed at two years imprisonment and from said judgment and sentence a timely appeal has been perfected to this Court.
The defendant was originally charged with the felony of Obtaining Narcotics by Fraud and Deceit and the misdemeanor of Obtaining Amphetamines by Fraud and Deceit, both charges arising out of a transaction that occurred at the same drug store on the same date. On November 2, 1970, the defendant entered a plea of guilty to the misdemeanor offense and was sentenced to six (6) months in the county jail; thereafter, on November 12, 1970, the defendant entered a plea of former jeopardy, and a hearing was held before the Honorable Jack R. Parr, District Judge of Oklahoma County. After hearing the stipulation of the parties, the trial court overruled the plea of former jeopardy and both sides announced they were ready for jury trial. On November 18, 1970, the defendant appeared in person, with his attorney, and entered a plea of guilty to the felony offense of Obtaining Narcotics by Fraud and Deceit.
The sole proposition asserts that the plea of former jeopardy should have been sustained. We do not deem it necessary to discuss in this opinion whether or not jeopardy had attached. We are of the opinion that the defendant's unqualified plea of guilty waived any objection the defendant might have to the defense of former jeopardy. In Ex parte Zeligson, 47 Okl.Cr. 45, 287 P. 731, we stated:
'Immunity from second jeopardy can be waived by express consent, or by implication by failure to claim or assert right.'
Again in Ex parte Kirk, 96 Okl.Cr. 272, 252 P.2d 1032, we stated:
'Constitutional immunity from second jeopardy is a Personal privilege for the sole benefit of the accused, and it may be waived...
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People v. Johnson
...from conduct indicative of consent or by failure to claim or assert the right in seasonable time.' (Emphasis added)' Bass v. State, 489 P.2d 1343, 1344 (Okl.Cr., 1971), citing Ex parte Kirk, 96 Okl.Cr. 272, 252 P.2d 1032 (1953). Incidentally, this case contrary to this opinion holds a guilt......
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Clay v. State
...may be waived and is waived by the voluntary entry of a plea of guilty. Stockton v. State, Okl.Cr., 508 P.2d 663 (1973), Bass v. State, Okl.Cr., 489 P.2d 1343 (1971). This position is not correct. Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) held "that a plea of guilt......
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Stockton v. State, A--17207
...the plea of guilty to the rape charge in Creek County. With this contention, the Court agrees. In the recent case of Bass v. State, Okl.Cr., 489 P.2d 1343 (1971), this Court held 'The sole proposition asserts that the plea of former jeopardy should have been sustained. We do not deem it nec......
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Davis v. State, A--18158
...The same situation arose in Dunson v. State, Okl.Cr., 493 P.2d 828 (1972), where this Court quoted with approval from Bass v. State, Okl.Cr., 489 P.2d 1343 (1971) where the court '. . . (T)he defendant's unqualified plea of guilty waived any objection the defendant might have to the defense......