Opinion
No. A-11149.
March 2, 1949.
(Syllabus.)
Habeas Corpus — Where Writ Granted, and District Court Delays Returning Prisoner for Pronouncing Proper Judgment, Prisoner Granted Outright Release From Penitentiary. Where in an original proceeding this court grants the writ of habeas corpus and remands the prisoner to the district court for the purpose of correcting an erroneous judgment and sentence, it appears that after the rendition of the opinion the district court of the county from which the prisoner was committed to penitentiary neglects and delays for an unreasonable length of time returning prisoner for the purpose of pronouncing a proper judgment and sentence as provided by law, the Criminal Court of Appeals will grant the prisoner his outright release from confinement. Proceeding in aid of habeas corpus writ previously granted. Petitioner discharged.
For former opinion, see 88 Okla. Cr. 154, 200 P.2d 781.
Fred Custer, pro se.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
It appearing that heretofore and on December 8, 1948, 88 Okla. Cr. 154, 200 P.2d 781, this court rendered its opinion in the above styled and numbered matter, wherein it was ordered that the petitioner, Fred Custer, be remanded to the custody of the sheriff of Washita county, Oklahoma, pending rendition of judgment in accordance with the provisions of Title 63 O.S.A. 1941 §§ 417[ 63-417], 420. Said order was made and entered for the reason that in pronouncing judgment and sentence the aforesaid provisions of the statutes had not been followed and the petitioner had been sentenced to serve a term in the penitentiary one year in excess of the two years provided by law, and said judgment was therefore void.
It further appears that since the rendition of said opinion the authorities of Washita county have made no effort to execute the order of this court for return of the said Fred Custer, the petitioner, for proper judgment and sentence, and the court is informed the said Washita county authorities do not desire to incur the expense incident to the procedure necessary for the pronouncement of a valid sentence; and it further appearing that in the early part of April, 1949, the petitioner will have served the maximum of two years as provided by law, and having been prejudiced in his rights as to application for parole, because of said excessive sentence, is entitled to his immediate release under said writ of habeas corpus heretofore granted. The warden of the State Penitentiary should be and is hereby ordered and directed to release the said petitioner from his custody, subject of course to any holds that might be pending against him. Mandate forthwith.