Stockton v. State, A--17207

• Decision Date: 06 March 1973
• Docket Number: No. A--17207,A--17207
• Citation: 508 P.2d 663
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Melvin STOCKTON, Appellant, v. The STATE of Oklahoma, Appellee.

Page 663

508 P.2d 663

Melvin STOCKTON, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17207.

Court of Criminal Appeals of Oklahoma.

March 6, 1973.

L. G. Hawkins, Sapulpa, and Elmore Page, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., Frank Muret, Legal Intern, for appellee.

OPINION

BLISS, Presiding Judge.

This is an appeal from a denial of Post-Conviction relief in the District Court of Creek County, Oklahoma. Petitioner, hereinafter referred to as defendant, was charged in the District Court of Creek County with the crime of Rape and was subsequently charged with the offense of Kidnapping in the District Court of Tulsa County, Oklahoma, said kidnapping and rape arising out of the same incident. Defendant, being represented by counsel, entered a voluntary plea of guilty in the District Court of Tulsa County for the crime of kidnapping on February 25, 1964, and was sentenced to a term in the state penitentiary of not less than fifteen (15) years and no more than life. Defendant, again represented by counsel, voluntarily entered a plea of guilty to the offense of rape in the District Court of Creek County on March 12, 1964, and was sentenced to a term of fifteen (15) years.

Defendant subsequently filed his application for Post-Conviction relief in the District Court of Creek County and an evidentiary hearing was held on November 12, 1971, at which time defendant was represented by counsel. At the conclusion of said evidentiary hearing and after argument of counsel, the trial court made essentially the following findings of fact and conclusions of law:

1. The only question presented to the Court was double jeopardy.

2. Defendant, Melvin Stockton, entered a plea of guilty to the charge of kidnapping with intent to rape in Tulsa County on February 25, 1964, and was sentenced thereon.

3. Defendant on March 12, 1964, voluntarily entered his plea of guilty to the crime of rape in Creek County and was sentenced thereon.

4. Defendant was represented by an attorney at the time each of such pleas were entered.

5. Neither defendant nor his attorneys raised the question of double jeopardy before the District Court of Creek County at the time he entered his guilty plea.

The trial court, based upon said findings of fact and conclusion of law, denied defendant's application, from which final order defendant perfected this appeal.

Defendant argues that the kidnapping and the rape arose out of the same criminal transaction; and, therefore, defendant is suffering double punishment in violation of 21 O.S.1970, § 11. Defendant further contends in his second proposition that defendant has twice been put in jeopardy of life or liberty for the same offense in violation of Article II, § 21 of the Oklahoma Constitution.

Assuming, for sake of argument, that the subject kidnapping and rape constitute a single crime, this Court would be compelled to hold that jeopardy had attached and, therefore, the rape conviction in Creek County was void, unless defendant had prejudiced himself in a manner which would constitute a waiver of his constitutional and statutory rights.

The State contends that defendant did in fact waive his objection to former jeopardy and dual punishment by voluntarily entering the plea of guilty to the rape charge in Creek County. With this contention, the Court agrees. In the recent case of Bass v. State, Okl.Cr., 489 P.2d 1343 (1971), this Court held that:

'The sole proposition asserts that the plea of former jeopardy should have been sustained. We do not deem it necessary to discuss in this opinion whether or not jeopardy had attached. We are of the opinion that ...