Opinion
No. A-7309.
Opinion Filed May 24, 1930.
Punishment — Youth Violating Terms of Order Suspending Sentence Required to Serve out Full Term of Sentence. Where a youth, 21 years of age or under, has been sentenced and his sentence suspended by the trial judge under the provisions of sections 2803, 2804, Comp. St. 1921, and thereafter during the pendency of said judgment it is made to appear to the trial judge that said youth has violated the terms of the order of suspension and the judge revokes such order, the said youth shall be delivered forthwith to the place of confinement to which originally sentenced, and shall serve out the full term of the sentence.
Original proceeding in habeas corpus by Harvey Anderson. Writ denied.
N.S. Corn, for petitioner.
Edwin Dabney, Atty. Gen., and Smith C. Matson and J.H. Lawson, Asst. Attys. Gen., for respondent.
This is an original proceeding in habeas corpus. Petitioner alleges in substance that he is illegally restrained of his liberty in the state reformatory or penitentiary at Granite, Okla.; that in May, 1925, he was sentenced to serve a term of seven years for burglary, and this sentence was suspended by the district judge. Thereafter in February, 1929, upon a hearing his suspended sentence or parole was revoked by said judge and petitioner was committed. While it is not stated that petitioner at the time of his sentence was of the age of 21 years or under, we assume that he was, as otherwise the district judge did not have authority to suspend his sentence. Sections 2803, 2804, Comp. Stat. 1921. In Ex parte Eaton, 29 Okla. Cr. 275, 233 P. 781, this court held that in case of a suspension of sentence under the provisions of sections 2803, 2804, supra, that the trial court was without authority to vacate the parole order of suspension and enforce the judgment after the expiration of the term for which the juvenile offender was sentenced. Ex parte King, 40 Okla. Cr. 21, 266 P. 511, is to the same effect. The holding in these cases is also in substance that during the term for which the offender was sentenced the parole may be revoked and the offender required to serve the full term. This view conforms to the language of section 2804, that when it is made to appear to the judge that the offender has violated the terms of the order of suspension, he shall serve out the full term for which he had originally been sentenced.
The order suspending sentence in this case having been revoked during the term for which the offender was sentenced, the petitioner is not entitled to release by habeas corpus.
The writ is denied.
DAVENPORT, J., concurs. CHAPPELL, J., absent, not participating.