Starr v. State
| Decision Date | 06 January 1971 |
| Docket Number | No. A--15240,A--15240 |
| Citation | 479 P.2d 628 |
| Parties | Paul STARR, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. In order to preserve for review on appeal the failure of the State to prove at preliminary examination a prior felony conviction, an objection must be interposed in the Motion to Quash in the District Court prior to proceeding to trial, and the failure to do so constitutes a waiver.
2. While it might be the better practice to recite in the judgment and sentence the fact of a previous conviction, it is not necessary to do so, particularly is this true when the punishment imposed could have been imposed for the primary offense.
3. A judgment and sentence is not rendered void by reason of a failure to recite therein the fact of a previous conviction.
Appeal from the District Court of Canadian County; Fenton R. Ramey, Judge.
Paul Starr, Jr., was convicted of the crime of Burglary in the Second Degree, After Former Conviction of a Felony, was sentenced to serve seven years in the state penitentiary, and appeals. Affirmed.
J. L. Pazoureck, Public Defender, for plaintiff in error.
G. T. Blankenship, Atty. Gen., Hugh H. Collum, Max Martin, Asst. Attys. Gen., for defendant in error.
This is an appeal from the District Court of Canadian County, Oklahoma, where Paul Starr, Jr., hereinafter referred to as defendant, was charged, tried and convicted for the offense of Burglary in the Second Degree, After Former Conviction of a Felony.
The uncontroverted evidence adduced on the trial reflects that on the evening of the 14th day of February, 1968, the defendant and one William F. Tiffie, were apprehended after Officer Sullivan observed them leaving the burglarized premises of the Shandell Place; the premises had been broken into and considerable damage was done inside.
At the conclusion of the evidence offered on behalf of the State on the primary charge, the jury retired to deliberate and found the defendant guilty. Thereafter, over the objection of the defendant, the State was permitted to prove the former conviction predicated on a plea of guilty at which time the defendant was represented by counsel. The jury found him guilty of Burglary in the Second Degree, After Former Conviction of a Felony, and sentencing was fixed by the court at seven years imprisonment in the state penitentiary.
Defendant urges that the trial court erred in admitting evidence of the former conviction in the second stage of the two-stage proceeding for the reason that no proof was offered at the preliminary examination of the former conviction as required under our decision in Carter v. State, Okl.Cr., 292 P.2d 435. Defendant correctly contends that proof of the former conviction should have been made at the preliminary examination under the authority of Carter, supra, and had a timely Motion to Quash been filed, as was done in the Carter case, with exceptions taken to the ruling of the court, a serious question would be preserved for review on appeal; but when the defendant appeared in open court, announced ready for trial, proceeded to trial without interposing...
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Thomas v. State, F-82-212
...the appellant and Oklahoma County based on Lamb v. Brown, supra, or its progeny. (State's in camera Exhibit No. 17).7 Starr v. State, 479 P.2d 628 (Okl.Cr.1971); Rapp v. State, 413 P.2d 915 (Okl.Cr.1966).8 According to the terms of 21 O.S.1981, § 51(B), only two prior felony convictions are......
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Tyler v. State, F-87-413
...such a right can be waived if the defendant announces ready for trial without interposing a timely motion to quash. Starr v. State, 479 P.2d 628, 629 (Okla.Crim.App.1971). Appellant has suffered no prejudice especially in light of the fact he was not surprised by the second page. See Money ......
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Berry v. State
...to the information waived any error occurring by the absence of a preliminary hearing on the prior convictions. In Starr v. State, 479 P.2d 628 (Okl.Cr.1971), relying on Rapp v. State, 413 P.2d 915 (Okl.Cr.1966) we determined that any error arising from the lack of a preliminary hearing on ......
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Porter v. State
...the information was not filed, and the appellant has thus waived any error occurring at the preliminary examination. See, Starr v. State, 479 P.2d 628 (Okl.Cr.1971). Secondly, Porter's contention that none of his prior judgments and sentences were properly authenticated under 12 O.S.1981, §......