DocketNumber: No. C-75-797
Citation Numbers: 546 P.2d 645, 1976 OK CR 36, 1976 Okla. Crim. App. LEXIS 698
Judges: Bliss, Brett, Bussey
Filed Date: 2/11/1976
Status: Precedential
Modified Date: 11/13/2024
OPINION
Appellant, Harry Sprigner, hereinafter referred to as defendant, upon a plea of guilty was convicted in the District Court, Stephens County, Case No. CRF-75-109, for the offense of Grand Larceny, in violation of 21 O.S.1971, § 1704. Pursuant thereto, he was sentenced to a term of two (2) years’ imprisonment. Subsequently the defendant filed a timely application to withdiaw his plea of guilty which was, upon hearing, overruled. Thereafter the defendant timely filed a petition for writ of certiorari, whereafter this Court directed the State to respond.
The instant petition is predicated upon the trial court’s failure to order a presen-tence investigation and report to be made by the Division of Probation and Parole of the Department of Corrections as provided in 22 O.S.Supp.1975, § 982.
We first observe that the validity of the defendant’s plea of guilty would not be affected even assuming the trial court failed to comply with the statute for the reason that any asserted error could, upon remand, be cured by re-sentencing following a presentence investigation and report.
In the instant case the record of the proceedings held on the, 29th day of September, 1975, reflects that subsequent to the defendant’s entry of his plea of guilty, the defendant effectively waived the ordering of a presentence investigation and report. The trial court had accepted the defendant’s plea of guilty and thereafter set a date certain for an evidentiary hearing to be held providing an opportunity for the parties to present evidence in mitigation or aggravation of punishment as provided in 22 O.S.1971, § 973
In passing we observe the actions of the trial court substantially complied with the purpose and intent of the subject statute. We limit this holding to the particular facts of this case.
We are therefore of the opinion that the facts presented in the instant case are insufficient to grant the instant petition for writ of certiorari and the relief therein requested. Thus, the petition will be denied.
For all the above and foregoing reasons the petition for writ of certiorari in the above styled and numbered cause is, accordingly, denied.
. Title 22 O.S.Supp.1975, § 982, reads as follows :
“Whenever a person is convicted of a felony except when the death sentence is imposed, the court shall, before imposing sentence to commit any felon to incarceration by the Department of Corrections, order a pre-sentence investigation to be made by the Division of Probation and Parole of the Department. The Division shall thereupon inquire into the circumstances of the offense, and the criminal record, social history and present condition of the convicted person; and shall make a report of such investigation to the court, including a recommendation as to appropriate sentence, and*647 specifically a recommendation for or against probation. Such reports must be presented to the judge so requesting, within a reason-sonable time, and upon the failure to so present the same, the judge may proceed with sentencing. Whenever, in the opinion of the court or the Division, it is desirable, the investigation shall include a physical and mental examination of the convicted person. The reports so received shall not be referred to, or be considered, in any appeal proceedings. Before imposing sentence, the court shall advise the defendant or his counsel and the district attorney of the factual contents and the conclusions of any pre-sentence investigation or psychiatric examination and afford fair opportunity, if the defendant so requests, to controvert them. If either the defendant or the district attorney desires, such hearing shall be ordered by the court providing either party an opportunity to offer evidence proving or disproving any finding contained in such report, which shall be a hearing in mitigation or aggravation of punishment.
“If the district attorney and the defendant desire to waive such presentence investigation and report, both shall execute a suitable waiver subject to approval of the court, whereupon the judge shall proceed with the sentencing.”
. See, Sarsycki v. State, Okl.Cr., 540 P.2d 588 (1975). Although the subject statute in Sarsycki was 57 O.S.Supp.1974, § 519, the same principle of “remand to cure any asserted error resulting from non-compliance” would be' applicable to the subject statute in the instant case for the reason that each statute’s provisions would only be operative after a determination of guilt with only the trial count’s sentencing function remaining.
. Title 22 O.S.1971, § 973, reads as follows:
“After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may in its discretion hear the same summarily at a specified time and upon such notice to the adverse party as it may direct.”
. The record reflects defense counsel, prior to the above mentioned acquiscence to the trial court’s decision not to order a pre-sentence report stated that it would be helpful to the court in this particular case as the defendant had a drinking problem, that the defendant was assured a job at Ridley Packing Company, and that he might reside at home wtih his mother who was sick with a heart condition.
. We are careful to limit these observations to this particular case and we do not hold, nor in any way intend to suggest, that a hearing under 22 O.S.1971, § 973, would satisfy the mandates of the subject statute.