Voegel v. State, A-12053

• Decision Date: 10 November 1954
• Docket Number: No. A-12053,A-12053
• Citation: 277 P.2d 215
• Parties: Howard Lee VOEGEL, 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

Page 215

277 P.2d 215

Howard Lee VOEGEL, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12053.

Criminal Court of Appeals of Oklahoma.

Nov. 10, 1954.

Rehearing Denied Dec. 15, 1954.

Syllabus by the Court.

1. The granting or refusal of a suspended sentence being discretionary with the trial court, this court will not interfere with the exercise of that discretion. Tit. 22 O.S.1951 §§ 991, 992.

2. In Oklahoma, in accordance with the statute, the sentence is pronounced and at the same time and as a part of the sentence the court may in its own discretion make provision that the execution of the sentence be suspended upon the conditions set forth in the statute.

3. Where judgment is pronounced and the trial court does not suspend the same, such judgment may not thereafter be suspended by the trial court as such action would constitute an infringement upon the pardon and parole power of the Governor.

4. While the general power of a court to reconsider its judgment and sentence, and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put in operation, has by this court been upheld, in order for this court to determine whether or not a trial court may have abused its discretion by failure to set aside a judgment in order to permit a defendant to change his plea of guilty to that of not guilty, and stand trial on the merits of the case, it is necessary that there be evidence in the record that would support the motion. Where the appeal is by transcript, errors which require an examination of the evidence taken at the trial cannot be considered. Tit. 22 O.S.1951, § 977.

Frank M. Massad, Wayne E. Wheeling, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam. H. Lattimore Asst. Atty. Gen., for defendant in error.

POWELL, Presiding Judge.

Howard Lee Voegel, Douglas J. Neeley and Billy Don Morgan were jointly charged in the district court of Oklahoma County with the crime of robbery with firearms. The defendants each waived a preliminary hearing, were bound over to answer the charge in the district court, and were admitted to bail.

Voegel, the appellant here, and Neeley were arraigned in the district court on November 5, 1953 and entered pleas of not guilty, but on November 18, 1953 they withdrew their former pleas, entered pleas of guilty, and sentence date was set for November 23.

On the date set, Howard Lee Voegel, hereinafter referred to as defendant, appeared in court and was sentenced to serve a term of five years in the Oklahoma State Penitentiary. No notice was given and there was no order extending time to make and serve casemade. The time expired on December 8, 1953. On December 3, 1953 there came on for hearing a 'Motion to Withdraw Plea and for New Trial.' The motion was overruled, and notice of appeal given, and there is a notation: '30-3-3 days allowed to make and serve casemade'. Under the provisions of a later order filed, the defendant was granted until January 2, 1954 in which to make and serve casemade. There was no attempt made to serve casemade until February 3, 1954. Therefore, the appeal could not be by casemade, and the record was certified as a transcript.

The appeal is without merit for two reasons: First, the granting or revoking of a suspended sentence being discretionary with the trial court, this court will not interfere with the exercise of that discretion. Tit. 22 O.S.1951 §§ 991, 992; Leasure v. State, Okl.Cr., 275 P.2d 344; Ex parte Boyd, 73 Okl.Cr. 441, 122 P.2d 162; Shannon v. State, Okl.Cr., 256 P.2d 475. Second, the contention that after the sentence had been pronounced on November 23, 1953 the court possessed authority at a later date to suspend the execution of the same can not be sustained.

As stated in Ex parte Boyd, supra [73 Okl.Cr. 441, 122 P.2d 170];

'In Oklahoma, in accordance with our statute, the sentence is pronounced, and at the same time and as a part of the sentence the court may in its own discretion make provision that the execution of the sentence be suspended upon the conditions set forth in the statute.'

Tit. 22 O.S.1951 § 991.

To hold that after a judgment had been pronounced, and where the court at the time did not suspend the same, that the court could at some later date suspend the same would in effect constitute an infringement upon the pardon and parole power of the Governor.

Counsel for the defendant is correct in his argument that the trial court had jurisdiction to set aside the judgment of the 23 day of November, 1953. See: Tit. 22 O.S.1951 § 517; Powell v. State, 94 Okl.Cr. 1, 229 P.2d 230; Peterson v. State, 58 Okl.Cr. 391, 54 P.2d 209; Factor v. State, 49 Okl.Cr. 308, 294 P. 206; Vaughn v. State, 47 Okl.Cr. 258, 288 P. 349; Rudolph v. State, 32 Okl.Cr. 265, 240 P. 761; Hart v. State, 29 Okl.Cr. 414, 233 P. 1095; McConnell v. State, 18 Okl.Cr. 688, 197 P. 521; Jenkins v. State, 6 Okl.Cr. 516, 120 P. 298; Rupert v. State, 9 Okl.Cr. 226, 131...