Hemphill v. State ( 1998 )

LANE, Judge,

dissents:

¶ 1 I dissent. Appellant was originally sentenced to serve five years in the custody of the Department of Corrections, suspended. During the time that he was serving that sentence the trial court revoked one year. He served the one year of custody in less than 12 months and was released from the custodial portion of his sentence by the Department. Therefore, he served and was given credit for one year in custody, and his sentence expired when he completed four years under suspension. To hold otherwise would mean that he served longer than the five years ordered by the court.

¶ 2 I disagree with the majority when it distinguishes this case from Frazier v. State, 793 P.2d 1365 (Okl.Cr.1989). In Frazier, the sentence was shortened by a governor’s commutation. In the instant case the sentence was shortened by the legal policies of the Department of Corrections. The cause of the shortening of the confinement period of the sentences in this case and Frazier may be different, but the fact is not disputed that it was shortened in each case.