Winchester v. State , 1965 Okla. Crim. App. LEXIS 179 ( 1965 )

403 P.2d 257 (1965)

Fred WINCHESTER, Petitioner,
v.
The STATE of Oklahoma and Ray H. Page, Warden, Oklahoma State Penitentiary, Respondents.

No. A-13698.

Court of Criminal Appeals of Oklahoma.

June 16, 1965.

BUSSEY, Presiding Judge.

This is an original proceeding wherein Fred Winchester, an inmate of the state penitentiary seeks his release from confinement where he is currently incarcerated by virtue of a judgment and sentence rendered against him in the District Court of Atoka County, Case No. 2793.

The sole ground upon which the petitioner seeks his release is that he was not represented by counsel at the preliminary hearing.

To the petitioner's application, the State has interposed a demurrer for the reason that it appears from the application of the petitioner that he was appointed counsel many months prior to his trial, and under well established Oklahoma law he could have raised any defect in the preliminary proceedings prior to or at arraignment in the trial court.

It is the further position of the respondent that when the petitioner and his attorney entered a plea to the charge in the District Court, and did not subsequently withdraw said plea or request a preliminary hearing, such conduct amounted to a waiver.

It appearing that the pleadings support the position of respondent, we are of the opinion that the respondent's demurrer should be sustained, and the relief prayed for denied.

Demurrer sustained. Writ denied.

NIX and BRETT, JJ., concur.