Tate v. State, A--16530
| Decision Date | 24 September 1971 |
| Docket Number | No. A--16530,A--16530 |
| Citation | 489 P.2d 501 |
| Parties | John Ward TATE, 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 |
Andrew T. Dalton, Jr., Public Defender, for plaintiff in error,
Larry Derryberry, Atty. Gen., James L. Gullett, Asst. Atty. Gen., for defendant in error.
John Ward Tate, hereinafter referred to as defendant, filed a Petition for Post Conviction Relief in the District Court of Tulsa County, and upon the hearing of the same, relief was denied, and from said Order Denying Post Conviction Relief, a timely appeal has been perfected to this Court.
The record reflects that the defendant was found guilty by a jury of the offense of Burglary in the Second Degree, After Former Conviction of a Felony, on September 15, 1965. Defendant was formally sentenced to a term of not less than five years, nor mroe than fifteen years, on September 17, 1965. Defendant's Motion for New Trial was overruled on November 19, 1965, wherein he gave Notice of Intent to Appeal. Thereafter, on January 10, 1966, defendant appeared in open court and with his attorney and withdrew his Notice of Intent to Appeal.
On February 9, 1971, defendant filed an Application for Post Conviction Relief asserting that the judgment and sentence should be modified for the reason that he was viewed in jail by members of the jury panel. The trial court, upon hearing the evidence, denied the Application for Post Conviction Relief, ruling that the defendant knowingly and voluntarily waived his ground when he withdrew his Notice of Intent to Appeal, and cannot re-raise it in an Application for Post Conviction Relief.
We concur with the ruling of the trial court. Title 22 O.S.Supp.1970, § 1086 provides as follows:
Defendant first raised the ground that he was observed by jurors in his Motion for New Trial. The record affirmatively reflects that defe...
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