OPINION
Appellant, Henry Rena Cobb, was convicted in the District Court of Tulsa County, Case No. CRF-87-757, of Burglary in the First Degree Aftеr Former Conviction of Two or More Felonies in violation of 21 O.S.1981, § 1431 and 21 O.S.Supp.1985, § 51. He was sentenced to imprisonment for twenty-five (25) years and brings this appeal.
The sole assignment of error relates to the use оf prior convictions for enhancement under 21 O.S.Supp.1985, § 51(B), therefore, a recitation of facts is unnеcessary. Appellant claims that the two felonies used to enhance his sentence were closely related in time and location. Section 51(B) provides in part, “Felony offenses relied upоn shall not have arisen out of the same transaction or occurrence or series of evеnts closely related in time and location.”
Where the State has improperly invoked enhancеment provisions under Section 51(B), this Court has modified the sentence to reflect one appropriate under section 51(A). See, e.g., Smith v. State,
In this case, Appellant showed that his two prior convictions arose when he was аrrested on December 9, 1985, in possession of a stolen vehicle. When his personal effects werе inventoried at the jail, he was also found to be in possession of phencycli-dine, a controllеd dangerous substance. Appellant pled guilty to charges of posses
The fact situation of the case presently before the Court is remarkably similar to the fact situation which arose in Love v. State,
In the case presently bеfore the Court the Appellant’s prior felony convictions arose when he was arrested for рossession of a stolen vehicle. Following that arrest he was found, at the. time of the book-in procedures at the jail, to be in possession of a controlled dangerous substance. Subsequently, the Apрellant pled guilty to both the charge of possession of a stolen vehicle and the charge of possession of a controlled drug. This Court has previously ruled in Love that the coincidence of discovеry of the offense is not sufficient to meet the burden of proof which is placed upon defendants in cases of this type. The act of possession of a stolen vehicle and the fortuitous discovery of a controlled dangerous substance are not the type of interrelated convictions prоhibited by section 51(B). Therefore, in following the previous decisions of this Court and the guidelines set forth for determining the applicability of section 51(B), the Appellant’s sentence should be affirmed in this case.
In additiоn, the record reflects that the Appellant objected in camera to the admissibility of both priоr felony offenses and to the instruction on punishment for commission of two or more prior felony cоnvictions. However, there was no objection to the admissibility of State’s Exhibits 4 and 5, the judgment and sentence in еach prior case, when offered at trial. (Tr. 115) Further, the Appellant failed to present any evidence which would provide a factual basis in support of those objections. (Tr. 115)
The issue of burden of proof of whether prior convictions used for enhancement purposes arise from the same transaction was discussed by this Court in Bickerstaff v. State,
In the instant case, the appellant would similarly receive a benefit if the conviсtions arose out of the same transaction as only one conviction would be used instead of eight. Defendants cannot receive this benefit without offering evidence whether the prior convictions were closely related.669 P.2d at 780 .
Bickerstaff thereby assigned the burden of proof in matters of this nature to the defendant as an affirmative defense.
The Appellant did not present any evidence at trial that the offenses were interrelated in such a manner as to meet the criteria set forth in 21 O.S.Supp.1985, § 51(B).
Accordingly, .the judgment and sentence is hereby AFFIRMED.