Marshall v. State
| Citation | 369 P.2d 195 |
| Decision Date | 07 February 1962 |
| Docket Number | No. A-13108,A-13108 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
| Parties | Norwood E. MARSHALL, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. |
Syllabus by the Court
1. Order of district court revoking suspension of sentence is not appealable. 22 O.S.1961 § 992.
2. Revocation of suspension of sentence is not a matter of right, but is purely within the trial court's discretion. 22 O.S.1961 § 992.
3. Vesting of power in trial court to revoke suspension of sentence does not deprive defendant of any of his constitutional rights. 22 O.S.1961 § 992.
4. The writ of habeas corpus can not be used to perform the office of a writ of error on appeal, but is limited to cases in which the judgment and sentence of the trial court is clearly void.
5. Where the trial court has jurisdiction of the person of the defendant, jurisdiction of the subject matter, and authority under the law to pronounce the judgment and sentence, defendant is not entitled to relief by habeas corpus, unless the trial court had lost jurisdiction by reason of depriving the accused of some substantial or fundamental right.
Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.
Attempted appeal from order revoking five-year suspended sentence. Appeal dismissed.
S. S. Lawrence, Tulsa, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
This is an attempted appeal by Norwood Ervell Marshall from an order of the district court of Tulsa County, Oklahoma, made and entered May 25, 1961 by Hon. Raymond W. Graham, wherein he revoked a five-year suspended sentence made and entered in the district court of said county on a charge against this appellant of robbery by force and fear.
The plaintiff in error seeks to vacate and set aside said order by this appeal. The Attorney General has filed a motion to dismiss the attempted appeal. We are of the opinion that the motion is well taken and should be sustained, on the authority of Burgett v. State, Okl.Cr., 362 P.2d 975; and State v. Humphrey, 85 Okl.Cr. 153, 186 P.2d 664. In the former case it was held:
Considering this attempted appeal on the basis of an application for writ of habeas corpus, there is no valid basis upon which to grant relief in habeas corpus. The writ of habeas corpus can not be used to perform the office of a writ of error on appeal, but is limited to cases in which the judgment and sentence of the trial court is clearly void. In re Application of Davis, Okl.Cr., 348 P.2d 545; Ex parte Owens, Okl.Cr., 295 P.2d 827.
Moreover, where the court has jurisdiction of the person...
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