Justus v. State , 509 P.2d 916 ( 1973 )

OPINION

PER CURIAM:

Appellant, Allen Clayborn Justus, hereinafter referred to as defendant, was charged with, and entered a plea of guilty to, the crime of Forgery in the Second Degree in the District Court of Oklahoma County, Case No. CRF-70-144. He was sentenced by the court to serve a term of seven (7) years in the state penitentiary and judgment and sentence were suspended on the 14th day of April 1970. On the 8th day of June 1972, an Order revoking the suspended sentence was issued by the District Court of Oklahoma County and judgment and sentence were duly executed. A timely appeal from the Order has been perfected to this Court.

Defendant was adjudged guilty of the crime of Attempted Larceny of a Motor Vehicle in the District Court of Oklahoma County, Case No. CRF-72-673, on May 19, 1972 and sentenced to serve a term of eighteen (18) months in the state penitentiary, which constituted the basis for the revocation of the suspended sentence. Defendant perfected an appeal in the Attempted Larceny of a Motor Vehicle cause which was ordered reversed and remanded this date in Gravett v. State, Okl.Cr., 509 P.2d 914. Since the conviction upon which the revocation of suspended sentence was based has been overturned by this Court, there remains nothing in the record to justify the revocation.

The District Attorney’s office is advised that this Opinion does not foreclose its right to file an application to revoke the defendant’s suspended sentence on the basis that he has violated the terms thereof by committing a crime prior to the retrial of the Attempted Larceny cause. See Carson v. State, Okl.Cr., 493 P.2d 1397.

The Order revoking the suspended sentence is accordingly set aside and reversed.