Ex parte Arnett, A-11451

• Decision Date: 13 December 1950
• Docket Number: No. A-11451,A-11451
• Citation: 225 P.2d 381,93 Okla.Crim. 116
• Parties: Ex parte ARNETT.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 381

225 P.2d 381

93 Okla.Crim. 116

Ex parte ARNETT.

No. A-11451.

Criminal Court of Appeals of Oklahoma.

Dec. 13, 1950.

Syllabus by the Court.

1. The language of statute requiring one receiving a suspended sentence 'to report to the judge of the court wherein convicted at each succeeding term during the pendency of said judgment, or when required by the court or judge,' imports that sentence can be revoked only within period of time imposed in the sentence. 22 O.S. 1941 §§ 991, 992.

2. Where an accused upon conviction is given a fine and costs such fine and costs are a part of the punishment but the commitment to jail until the fine and costs are paid, or satisfied, is not part of the punishment, but merely a mode of executing the sentence.

3. By reason of the provisions of statute, 28 O.S. 1941 § 101, a person committed to jail to serve out an unpaid fine and costs is entitled to credit at the rate of $1 of such fine and costs for each days imprisonment.

4. When execution of a sentence is suspended, the judgment itself is not impaired or limited. The time for its execution is merely deferred, as a matter of grace, subject to being withdrawn by the court for a violation of some of the conditions named in statute.

5. Trial court sentencing convicted person to serve a term of imprisonment in the county jail and to further pay a fine and costs does not have the authority to suspend a part of the judgment, but if the sentence is suspended it applies to both the term of imprisonment and the fine and costs.

6. Where convicted person is sentenced to serve thirty days in county jail and pay a fine and costs but the sentence is suspended during good behavior under the provisions of the statute, 22 O.S. 1941 § 991, the judgment is 'pending' so as to authorize the trial court to enter an order of revocation of the suspended sentence not only during the thirty days period for which the petitioner was sentenced to the county jail but also during the period which the petitioner would be required to serve out the sentence in jail in case of non payment of the fine and costs at the rate of $1 credit on such fine and costs for each day's imprisonment.

Carder & Carder, Hobart, for petitioner.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Ass't. Atty. Gen., J. Carpenter Hughes, County Atty., Fred Cunningham, Ass't. County Atty., Hobart, for respondent.

JONES, Presiding Judge.

This is an original action in habeas corpus instituted by the petitioner, James Arnett, for the purpose of securing his release from confinement in the county jail of Kiowa County.

The facts are not disputed. On July 28, 1949 the petitioner entered his plea of guilty in the county of Iowa County to the offense of driving a motor vehicle while under the influence of intoxicating liquor and the court by its judgment fixed the punishment at thirty days in the county jail and a fine of $100 and costs, which fine and costs if not paid, both by the formal judgment of the court and the provisions of statute, Tit. 28, O.S. 1941 § 101, were to be enforced by imprisonment in the county jail at the rate of $1 credit on the fine and costs for each days imprisonment. At the same time the trial court pursuant to the provisions of Tit. 22, O.S. 1941 §§ 991 and 992, suspended the execution of the sentence and the petitioner was released from custody.

Thereafter on September 21, 1949 and petitioner again entered his plea of guilty to the charge of driving an automobile while under the influence of intoxicating liquor and his punishment was fixed at three months in the county jail and a fine of $100 and costs, and the defendant was committed to jail to serve said sentence. On the same day, September 21, 1949, and trial court entered an order revoking the suspended sentence given on July 28, 1949.

The petitioner having fully served the jail term and fine and costs on the second offense is now being held to serve the sentence pronounced on July 28, 1949.

The petitioner contends that the trial court was without authority to revoke the suspended sentence for the reason that the order of revocation under the law had to be made within thirty days after judgment was pronounced which was the period of the jail sentence; that the fine and costs are a part of the punishment but that the commitment until the fine and costs are paid is not part of the punishment but is merely a mode of executing the sentence.

The state contends that because of the statutory provision that a fine and costs can be enforced by imprisonment in the county jail at the rate of one days imprisonment for each dollar of said fine and costs authorize the trial court during the period in which the fine and costs would have to be served if unpaid to revoke the suspended sentence. The statute in question provides: 'The fees herein provided for the clerk of the district court, the clerk of the superior court, the clerk of the county court, the sheriff, the county attorney, the constable, and the justice of the peace, as provided in this act, and all costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison.' Tit. 28...