Flowers v. Page

BRETT, Judge: Reuben J. Flowers has filed in this Court an instrument which he styles “Petition for Post Conviction Appeal”. However, he does not state any grounds that would entitle him to a post conviction appeal. His only complaint seems to be that he was convicted of burglary in the second degree, in Pottawatomie County, in 1962, and was sentenced to serve twenty years therefor in the state penitentiary. This petitioner filed a petition for writ of habeas corpus in this Court on December 8, 1964, setting out the same grounds, and seeking his release from the penitentiary for the reason that he was sentenced to twenty years for the crime of burglary in the second degree, whereas the maximum punishment provided by statute is seven years. See Flowers v. State, Okl.Cr., 398 P.2d 161. In that case we found that this petitioner had been charged with burglary in the second degree, after former conviction of felony; that he was represented by counsel throughout his trial, and tried before a jury. The jury found defendant guilty of burglary in the second degree, after former conviction of felony, and fixed his punishment at twenty years in the state penitentiary. This Court found that the journal entry of judgment entered in that case failed to recite that the defendant had been found guilty of burglary in the second degree “after former conviction of felony”. Therefore, this Court directed the district court of Pottawatomie County to conduct a nunc pro’ tunc proceeding, and correct the judgment and sentence entered February IS, 1963. Said judgment and sentence was corrected to show that the defendant was found guilty of the crime of burglary in the second degree, after former conviction of felony, and sentenced therefor, in accordance with the charge and verdicts of the jury.. The Attorney General has filed a response in this action, calling attention to the former action of this Court, and of the trial court. He attached a duplicate original of the order nunc pro tunc, dated March 26, 1965, and a certified copy of the corrected judgment and sentence entered against this defendant. The corrected judgment and sentence properly shows the defendant to have been charged, convicted and sentenced for the crime of burglary in the second degree, after former conviction of felony. Defendant states that he has filed a petition for writ of habeas corpus in this Court, in the Federal court at Muskogee, Oklahoma and in the Tenth Circuit Court, all of which have been denied. Finding no merit in petitioner’s application for post conviction appeal, the same is denied. NIX, P. J., and BUSSEY, J., concur.