White v. State, PC-89-331
| Decision Date | 19 May 1989 |
| Docket Number | No. PC-89-331,PC-89-331 |
| Citation | 774 P.2d 1072,1989 OK CR 20 |
| Parties | Larry Allen WHITE, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from the District Court, McClain County, Noah Ewing, J.
ORDER GRANTING POST-CONVICTION RELIEF
Petitioner sought Post-Conviction Relief in the District Court of McClain County in Case No. CRF-84-28, and relief was denied by the trial court. Appellant has perfected this appeal pursuant to the Post-Conviction Procedure Act, 22 O.S. 1981 1087 [22-1087].
On October 16, 1985, Appellant pled guilty to the felony charge of Manslaughter in the First Degree. As the result of this plea, the Appellant was sentenced to serve an indeterminate term of not less than five years nor more than life in the custody of the Department of Corrections.
Appellant contends that this sentence is not valid because the imposing of a maximum sentence of not more than life violates the provisions of title 57 O.S. 1981 353 [57-353]. This section provides:
In all cases where a sentence of imprisonment in the penitentiary is imposed, the court in assessing the term of the confinement may fix a minimum and a maximum term, both of which shall be within the limits now or hereafter provided by law as the penalty for conviction of the offense. The minimum term may be less than, but shall not be more than, one-third of the maximum sentence imposed by the Court. (Emphasis added)
In order to determine whether the sentence imposed in this case meets the requirements of 57 O.S. 1981 353 [57-353], we must determine whether five (5) years is less than 1/3 of a life sentence. We find no statutory authority or case law instructing this Court as to how to calculate one-third of a life sentence. Since one-third of a life sentence cannot be calculated, we find that the trial court may not set an indeterminate sentence where a life sentence is the maximum imposed. Therefore, Appellant's conviction must be vacated.
Having decided that the trial court erred in imposing this sentence upon Appellant's plea, we must next determine the procedure to be used to rectify the error. Title 22 O.S. 1981 1085 [22-1085] provides:
If the court finds in favor of the applicant, it shall vacate and set aside the judgment and sentence and discharge or resentence him or grant a new trial or correct or modify the judgment and sentence as may appear appropriate. The court shall enter any supplementary orders as to rearraignment,...
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Anderson v. State
...when we interpreted 57 O.S.1987, § 353 (now 57 O.S.2001 353.1) in Underwood v. State, 1990 OK CR 1, ¶ 3, 786 P.2d 707, 708 and in White v. State, 1989 OK CR 20, ¶ 4, 774 P.2d 1072. There, we held that statute was inapplicable to a life sentence, because the term of a life sentence could not......
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Murray v. Cowley
...not be more than, one-third ( 1/3) of the maximum sentence imposed by the court.... Id. tit. 57, Sec. 353 (1984). In White v. State, 774 P.2d 1072 (Okla.Crim.App.1989), the Oklahoma Court of Criminal Appeals ruled that an indeterminate sentence of five years to life imprisonment violated se......
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Stafford v. State, 0-89-897
...110, 112 (Okl.Cr.1990); 22 O.S.Supp.1989, Ch. 18, App., Rules of the Court of Criminal Appeals, Rule 3.5(C). Furthermore, our decision in White, supra, clearly states that the procedure this Court will follow in correcting an invalid sentence is to remand the cause to the district court wit......
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Roberts v. Scott, 91-7065
...701.4 should be limited by section 353 to an indeterminate term of ten to thirty years. IFP/CPC Motion at 3; see also White v. State, 774 P.2d 1072 (Okla.Crim.App.1989) ("Since one-third of a life sentence cannot be calculated, ... trial court may not set an indeterminate sentence where a l......