*1 121 filing of the information. State, supra,
Jones v. we held that the three FERGUSON, Appellant, Don F. delay month occasioned State’s v. of the refiling missal information Oklahoma, Appellee. STATE The deprive sufficient to defendant .right speedy his to a trial. No. F-80-819. The record here demonstrates that of Criminal Oklahoma.
the order motion to granting dismiss because another case had filed April 22, 1982. concerning complies the same crime with 22 O.S.1981, Compare Taylor 815 and 817. §§ State, (Okl.Cr.1975).
v. 531 1060 P.2d sections,
construing those two we uni- have
formly held that order an entered
trial dismissing charge court against subsequent
accused does not bar a prosecu- information,
tion under a new or indictment
unless the has been placed defendant Robinson,
jeopardy. State v.
(Okl.Cr.1975). subsequent refiling
charges against appellant, after dismiss- of charges jeop-
al did not constitute double
ardy, process, denial of due or denial
speedy Lampe trial. See 540 P.2d
590 showing
Absent a of bad faith prejudice of the accused, the relevant time to be con
sidered would commence at the second ar Rose,
rest and refiling. See State v. 589 (Ariz.1978); Fink, State v. 538 P.2d Here, (Kan.1975). presented State
a valid reason for the continuance information;
dismissing the first showing of a attempt delay deliberate hamper
the trial in order to the defense.
And, although the defense asserted
right appears speedy from
record that the actu- neither
ally or appreciably ability harmed in her
defend herself. We therefore find no error. judgment AF- sentence is
FIRMED.
BUSSEY, J., concurs. results. *2 the sale had informed them that and
side arrest- was then Ferguson completed. provided Money the residence. ed outside found in was police the Southwood well as addi- as possession appellant’s the residence, Of- Inside the marijuana. tional bags con- large found three ficer Griffin marijuana. taining error, appellant of proposition first As his this case is prosecution in that his asserts of jeopardy provisions the double barred Constitu- and Oklahoma the United States of the crime convicted Ferguson tions. was intent marijuana with possession of of County Case No. in distribute Comanche the argues bars which CRF-79-384 present conviction. Woodward, Appellate Pub- David Luther Defender, Norman, appellant. for lic which the facts examination of An Gen., Floyd Cartwright, Atty. Jan Eric of the two informations filing the led to Gen., Oklahoma Taylor, Atty. W. First Asst. appellant’s of contention. fallacy the reveals City, appellee. for States, 284 U.S. Blockburger v. United (1932), the 76 L.Ed.2d 52 S.Ct. OPINION the “same evi established Supreme Court
CORNISH, Judge:
validity of
determining
for
dence” test
statutory
If each
Appellant,
jeopardy
was convicted
claim.
Ferguson,
Don
a double
Marijuana in viola-
addi
Delivery
requires proof
of
of
of an
provision
Unlawful
violated
not,
tion of 63
2-401 in Comanche
O.S.1971
there is
§
the other does
tional fact which
appel-
County Case No. CRF-79-383.
jeop
of
doctrine of double
no violation
(2) years impris-
lant was sentenced to two
ardy.
$5,000.
onment and was fined
possession
for
In,
officers obtained informa-
police
Lawton
marijuana, Fergu
with intent
distribute
informant,
Southwood, Henry
tion from
which
marijuana
prosecuted
was
for
son
marijuana
from Don
that
could be obtained
after he left
possession
in his
consent,
informant’s
Ferguson. With the
prose
present
residence.
In the
Southwood
be-
police
taped
officers
a conversation
cution,
support the
marijuana used to
Ferguson, arranging
and
tween Southwood
the mari
delivery
unlawful
charge of
mari-
pounds
for
to sell several
of
Ferguson
Ferguson
which
sold Southwood
juana
ac-
juana to
officers
Southwood. Several
at the time of
residence
to his residence was
Southwood’s
companied Southwood
could not
appellant
the sale was to be consummated.
arrest.
Ferguson’s
where
searched
separate
Officer Griffin
Southwood
of
crimes
charged
and convicted
Ferguson
arrival of
prior
residence
mari
with intent to distribute
possession
marijuana
that no
and established
marijuana
delivery
unlawful
juana and
present.
then concealed himself
Griffin
predicate
as a
marijuana
the same
using
a
he was able to hear the
closet from which
where different caches
both.
ap-
and the
transaction between Southwood
is no
charges,
marijuana support
pellant.
jeopardy clause.
violation of the double
State,
As his final error alleges the trial COOPER, Appellee, Jim sup court’s denial a defense motion to press telephone recorded conversa STOCK YARDS BANK OF OKLAHOMA Ferguson. tion between Southwood CITY, OKLAHOMA, Banking a person party telephone Where one is Corporation, Appellant. *3 conversation, permit can record anoth 53516. No. er to record the contents the conversa legitimate tion purpose. Pearson v. Oklahoma, Court State, 556 Officer 2. Division No. Griffin testified that he obtained South- 18, Aug. 1981. conversation, wood’s consent to but 15, Rehearing Sept. Denied 1981. Southwood did testify. Appellant at tape recording tacks the admission of the Certiorari Denied March 1982. by suggesting that perhaps consent was Released for Publication Order of the or, actually given, given, if consent of Appeals April 1982. was perhaps Appellant coerced. offers allegations supporting these with no evi
dence. Officer Griffin’s testimony concern
ing Southwood’s consent was sufficient proof
meet burden of
issue. We appellant’s proposition find the
without merit.
The judgment and sentence is therefore
AFFIRMED.
BUSSEY, J., concurs.
BRETT, part concurs in in part.
sents Presiding Judge, in part: dissents
I concur that this conviction is sufficient sustained; however,
ly I dissent
hearsay testimony granted that consent was
to record the telephone conversation. For
the same reason I dissented the decision Helfrich v. Further, insofar as indigent
found at as well as for
appeal, I modify would the fine from
$5,000.00 to $500.00.