Delfrate v. State, F-85-659

• Decision Date: 03 February 1987
• Docket Number: No. F-85-659,F-85-659
• Citation: 732 P.2d 900
• Parties: John Stephen DELFRATE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 900

732 P.2d 900

John Stephen DELFRATE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-85-659.

Court of Criminal Appeals of Oklahoma.

Feb. 3, 1987.

Thomas Purcell, Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, John Stephen Delfrate, was convicted of the crime of Escape While Awaiting Trial, After Former Conviction of Two or More Felonies in the District Court of Creek County, Case No. CRF-83-282 and was sentenced to twenty (20) years imprisonment, and he appeals. We reverse and remand for resentencing.

Briefly stated the facts are that on September 28, 1983, while awaiting trial on two (2) felony counts of armed robbery, appellant escaped from the Creek County Jail.

For his initial assignment of error appellant asserts that he should have been tried for the misdemeanor offense of breaking jail pursuant to 57 O.S.1981, § 56 rather than the offense for which he was convicted, a felony escape under 21 O.S.1981, § 443.

Title 57 O.S.1981, § 56 provides that:

If any person who may be imprisoned pursuant to a sentence of imprisonment in the county jail, or any person who shall be committed for the purpose of detaining him for trial, for any offense not capital, shall break prison and escape, he shall be punished by confinement in the county jail not exceeding one (1) year, or by a fine not exceeding One Thousand Dollars ($1,000.00), or by both.

Title 21 O.S.1981, § 443 provides that:

Any person having been imprisoned awaiting charges or prisoner awaiting trial or having been sentenced to confinement with the Department of Corrections who escapes from such confinement, either while actually confined therein, or while permitted to be at large as a trusty, or while awaiting transportation thereto, is punishable by imprisonment for a term of not less than one (1) year nor more than seven (7) years, however as escape by an inmate confined in any institution or facility operated by the Department of Corrections shall be punishable by imprisonment of not less than two (2) years or more than seven (7) years.

Clearly, both statutes apply to cases where an escape is effectuated from the county jail while a prisoner is awaiting trial. However, since 21 O.S.1981, § 443, which was amended in 1976, ¹ is a much more recent enactment than 57 O.S.1981, § 56, the new statute will control as it is the later expression of the legislature. See Smith v. State, 626 P.2d 1357 (Okl.Cr.1981). Insofar as Section 443 relates to a "prisoner awaiting trial" it repeals by implication the portion of Section 56 relating to an escape while awaiting trial. Therefore, we find that appellant was properly charged and convicted of felony escape pursuant to 21 O.S.1981, § 443. This assignment of error is without merit.

Appellant next contends that the trial court erred in sentencing him under the habitual offender statute. We agree with this contention.

This Court has consistently held that it is improper to charge after former conviction of a felony under the habitual criminal statute when charging an accused with the crime of escape since it is a...