Hill v. State , 481 P.2d 797 ( 1971 )

BUSSEY, Presiding Judge:

Robert Wesley (Bobby) Hill, hereinafter referred to as defendant, was charged in the District Court of Custer County with the offense of Burglary in the Second Degree, After Former Conviction of a Felony. He entered a plea of guilty after the State withdrew the After Former portion of the Information; his punishment was fixed at five years imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

The defendant’s sole proposition contends that the punishment is excessive. This Court has consistently held that the question of the excessiveness of punishment must be determined by a study of all facts and circumstances in each case, and the Court of Criminal Appeals does not have the power to modify a sentence unless we can conscientiously say that under all the facts and circumstances the sentence is so excessive as to shock the conscience of the Court. Clouse v. State, Okl.Cr., 389 P.2d 1002.

We have carefully reviewed the entire record and cannot conscientiously say that the five year sentence shocks the conscience of this Court. We note that if the State had not dismissed the After Former portion of the Information, the punishment could have been greatly enhanced. We, therefore, are of the opinion that the judgment and sentence should be, and the same is hereby, affirmed.

NIX and BRETT, JJ., concur.