Opinion
No. A-13327.
February 20, 1963.
Original proceeding in which Tom Smith seeks by writ of habeas corpus to obtain his release from the State Penitentiary. Writ denied.
Tom Smith, pro se.
Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for respondents.
Tom Smith, an inmate of the State Penitentiary, serving a term of three years for the crime of burglary in the second degree, has bought this original proceeding in habeas corpus, complaining that he is unlawfully restrained of his liberty by R.R. Raines, Warden of the Oklahoma State Penitentiary.
In substance the petitioner alleges that the judgment and sentence under which he is confined has been altered, and that the said judgment and sentence is void and of no effect and that he should be discharged from unlawful confinement. He further alleges that the alteration violated his constitutional rights, and that the authorities of Seminole County are removing him from the State Penitentiary without legal justification, and charging him the costs of such removal as additional punishment.
This Court has held many times that on an application for writ of habeas corpus, "[That] [t]he scope of review on habeas corpus is limited to an examination of the jurisdiction of the court whose judgment of conviction is challenged." Ex parte Massengale, 67 Okla. Cr. 181, 93 P.2d 41; Ex parte Custer, 88 Okla. Cr. 154, 200 P.2d 781.
There are no allegations that the trial court was without jurisdiction to pronounce the judgment and sentence, nor is the judgment and sentence void on its face. Therefore, the petitioner's claim of unlawful confinement has no merit.
Pursuing this allegation further, the petitioner does not say that his present confinement is a result of the assessment of court costs, which is the alteration complained of. This being so, the rule set down in Ex parte Autrey, 58 Okla. Cr. 88, 50 P.2d 239, and Ex parte Wagner, 58 Okla. Cr. 161, 50 P.2d 1135, would not apply, wherein this court said imprisonment for court costs shall not be served in the State Penitentiary.
The court costs are not in excess of the jurisdiction of the court to impose, and the trip for which they were assessed is not an unauthorized one. 22 O.S. 1961 § 980[ 22-980] provides:
"If the judgment is for imprisonment in a State prison the sheriff of the county or subdivision must, upon receipt of a certified copy thereof, take and deliver the defendant to the warden, superintendent or keeper of the State prison. He must also deliver to the warden or other proper officer a certified copy of the judgment, and take from the warden or other proper official a receipt for the defendant, and make return thereof to the court."
Finally, the defendant's constitutional rights have not been violated and the order assessing the costs and manner in which they are to be paid follows the statutory provision set down in 28 O.S. 1961 § 101[ 28-101]:
"* * * [A]ll costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, * * * and the payment of such fees and costs * * * shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day * * *."
The petitioner's writ of habeas corpus is, therefore, denied.
BUSSEY, P.J., and NIX, J., concur.