Bishop v. State, O-78-129
| Decision Date | 23 January 1979 |
| Docket Number | No. O-78-129,O-78-129 |
| Citation | 593 P.2d 505 |
| Parties | Mark Alan BISHOP, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
MARK ALAN BISHOP, appellant, was convicted of the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, second or subsequent offense; was sentenced to five (5) years' imprisonment, suspended. Suspension of sentence was revoked, and he appeals. Order revoking suspended sentence AFFIRMED.
Jerome H. Blumenthal, Oklahoma City, for appellant.
Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., for appellee.
This is an appeal from an order revoking the suspended sentence of appellant, Mark Alan Bishop, hereinafter referred to as defendant, in the Oklahoma County District Court, Case No. CRF-76-2295.
The State filed an application to revoke defendant's five (5) year suspended sentence, alleging that defendant violated the terms of his probation by illegally possessing drugs, for which one felony and five misdemeanor charges were brought. At a hearing before Special District Judge Swank, the defendant, having negotiated with the prosecutor's office, confessed to the application to revoke and at the same time pled guilty to the drug charges. Judge Swank, ruling on both matters, sentenced the defendant to one year in the County jail for the misdemeanor drug offenses and also revoked one year of the suspended sentence, the two terms to run concurrently. Later that day, upon a motion of the State, Judge Swank vacated his judgment and sentence. The case was then heard before District Judge Carmon Harris, who revoked defendant's suspended five year sentence in its entirety.
In his first assignment of error, defendant contends that Judge Swank's order should not have been vacated on the State's motion. We disagree. The original order was indeed invalid, not because Judge Swank lacked the authority to hear the case, but because he lacked the authority to provide for concurrent sentences. Pursuant to 21 O.S.1971, § 61, Judge Swank should have ordered defendant's sentences to run consecutively. See, Thurman v. Anderson, Okl.Cr., 500 P.2d 1074 (1972). We hold, therefore, that the first judgment and sentence was properly vacated.
In his second assignment of error, defendant asserts that he was twice placed in jeopardy by the two hearings. Again, we disagree. In Marutzky v. State, Okl.Cr., 514 P.2d 430 (1973), a second hearing on revocation of a suspended sentence was held following dismissal of an earlier application. We held that the principle of double jeopardy is...
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