Boggs v. State, PC--76--469

• Decision Date: 25 June 1976
• Docket Number: No. PC--76--469,PC--76--469
• Citation: 551 P.2d 1166
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Jerry BOGGS, Appellant, v. The STATE of Oklahoma, and Department of Corrections, Appellees.

Page 1166

551 P.2d 1166

Jerry BOGGS, Appellant, v. The STATE of Oklahoma, and Department of Corrections, Appellees.

No. PC--76--469.

Court of Criminal Appeals of Oklahoma.

June 25, 1976.

An appeal from the District Court, Pittsburg County; Robert A. Layden, Judge.

An appeal from an order denying post conviction relief. The order of the trial court is AFFIRMED in part and REVERSED AND REMANDED in part.

MEMORANDUM OPINION

BUSSEY, Judge:

This is an appeal from the order of the trial court denying post conviction relief in Case No. CRF-71-125, of the District Court, Pittsburg County, on June 14, 1976.

In his application for post conviction relief, appellant contests in several respects the regularity of the executive proceedings resulting in the revocation of his parole, and contends that he is entitled to credit against his original sentence for the time he was on parole prior to revocation. In Cases Nos. H-75-767 and PC-75-811 (B), appellant previously endeavored to raise the legality of his parole revocation in proceedings originally commenced in this Court, however, those cases were dismissed and appellant's attention was directed to the provisions of the Post-Conviction Procedure Act requiring that such relief first be sought in the appropriate trial court. In summarily denying appellant's application for post conviction relief the trial court ruled:

"Petitioner's principal complaint . . . [is] that he was afforded an improper hearing on parole revocation and that he was denied being given credit for time served while he was released under parole. Neither of these contentions establish grounds for Post-Conviction Relief.

"RELIEF REQUESTED DENIED."

We are of the opinion that the trial court was eminently correct in ruling that as a matter of law appellant was not entitled to credit against his original sentence for the period while he was on parole prior to executive revocation thereof, and to that extent appellant's application did fail to state grounds for post conviction relief. See: §§ 57 O.S. 1971 332.14 [57-332.14] and 350; and, Thurman v. Anderson, Okl.Cr., 500 P.2d 1074 (1972); Richardson v. Pardon and Parole Bd., Okl.Cr., 433 P.2d 518 (1967); Pappan v. Page, Okl.Cr., 422 P.2d 470 (1967); Simpson v. Page, Okl.Cr., 416 P.2d 635 (1966); and, In Re Salisbury, Okl.Cr., 369 P.2d 476 (1962). We therefore affirm this aspect of the ruling of the trial court.

Insofar as appellant contested the regularity of the executive parole revocation proceedings, however, we are of the opinion that the ruling of the trial court was clearly in error. If these probation revocation proceedings were not conducted in accordance with at least minimal considerations of fundamental fairness and due process of law, as alleged by appellant, then his application clearly presented a ground for post conviction relief. See: Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Annot. 36 L.Ed.2d 1077 and 44 A.L.R.3d 306; and, § 22 O.S. 1971 1080 [2...