*1 (Okl.Cr.1979). Alsо, United Supreme recently States Court has ruled process
that due was afforded in a similar though setting
factual “even the State explain did not on the record his rejectiоn
consideration and of alternatives Romano, consideration.” Black v. 606, 616, 105 2254, 2260,
U.S. 85 L.Ed. S.Ct. 636, (1985). Black,
2d in this as findings.” were “written there no tran
The record Black consisted of the
script hearing and a defendant’s sentencing prepared
memorandum While no
court. we have memorandum Court, complete
before this we do have а hearings. the revocation appel no raised objections
There are regarding the fundamental fairness of preceеdings, nor evidence slightest supports the record that “Arbitrary
inference of Action of Govern 624, Black
ment.” U.S. at 2264, Marshall, J., concurring.
S.Ct. at we conclude that are of error without merit. appellant’s suspendеd revoking
The order
sentence AFFIRMED.
BRETT, P.J.,
concur.
Anthony FLEMING, Appellant, Oklahoma, Appellee.
STATE of
No. F-85-731. Appeals
Court of Criminal of Oklahoma.
Aug. 1988.
Rehearing Sept. Denied 1988.
Cummings testified that he went home after he and the appellant left the automo- parts tive store. night, Fleming Later that picked Cummings uр at home and asked he, him if (Cummings), wanted to accompa- ny to “hit” the automotive Cummings agreed. store. He further tes- tified appellant рarked that the the car at the front of the store broke the front plate glass window of the store with a brought Cummings hammer he with him. battery chargеrs then loaded two into Fleming car while loaded the jack. Cummings transmission testified battery charg- later sold one of the ers for $75.00. later, acquaintance
A week
an
was work-
ing
Fleming’s
car and mentioned
jack. Fleming
needed a transmission
alleged
“might”
to have said that he
know
jaсk.
someone who had such a
He re-
shortly
turned
with what was identified
Palmer, Deputy Appellate
Patti
Public
later as the
jack.
stolen transmission
Defender, Norman,
appellant.
In his first three
Gen.,
Henry, Atty.
Terry
H.
J.
Robert
appellant argues
essentially the same
Jenks,
Gen.,
Atty.
City,
Asst.
Oklahoma
point:
testimony
accomplice,
appellee.
Cummings,
Ronnell
was uncorroborated.
this,
appellant complains
Because of
process;
that he was denied due
OPINION
convict;
was insufficient evidence to
BUSSEY, Judge:
that the trial court committed fundamental
apрellant, Anthony
Fleming,
The
by failing
give
cautionary
error
in-
was tried and convicted in the District
regarding Cummings’ credibility
struction
County
Burglary,
Court
Comanche
aсcomplice.
disagree
as an
We
on all three
Degree,
Second
After Former Conviction of points,
point
and will address the last
first.
O.S.1981,
Felony pursuant
to 21
§
examination of the trial
Our
record
O.S.1981, 51;
and 21
Case No. CRF-85-
§
only ap
that defense counsel not
shows
(10) years’
16 and was sentеnced to ten
instructions,
proved the
but offered no al
imprisonment.
instructions as well. We have
ternative
2nd, 1985,
night
During
January
long
held that this constitutes wаiver
Lawton,
parts
an
store in
Okla- any possible
Luckey
appeal.
automotive
error on
State,
homa,
burglarized.
(Okl.Cr.1974).
The
v.
thieves
breaking
gained
entrance
the store
appellant’s claim that there
As to
display
Among
window.
the items tak-
accomplice’s
for thе
was no corroboration
battery chargers and a trans-
en were two
testimony,
the fruits of the
we note that
jack.
mission
Fleming’s possession.
crime were found
State,
(Okl.Cr.
closing
time that same eve-
See Grider v.
Just before
is AFFIRMED. cause the had jury defendant insisted on a my reading trial. Id. at 456. Frоm BRETT, P.J., concurs. appears in it this part/dissents in concurs appellant’s trial refused to consider part. in request suspended solely for а sentence PARKS, Judge, concurring part in right because he on his jury insisted to a dissenting and part: Gillespie, trial. As stated in at 456: Although I A policy designed dеny concur affirmance defendant appellant's conviction, agree suspended I solely cannot sentence becаuse he de- with the majority’s manded jury contrary treatment trial to law assignment fourth error. In holding unjustifiable and an denial of defendant’s rights denying application not err in his court did have for a sus- suspended pended request upon for a sen- sentence considered its mer- tence, the its majority states court ... Whether evidence before the “[t]he ... statutory duty imposed justify granting followed its court was sufficient to jury.” denying application by Majority sentence set is not the question before the court. The grant fact is or deny the upon grounds same the court denied application sanctioned law and not appel- because upon grounds insisted on jury not sanctioned law. trial. Accordingly, while I would affirm the
conviction, given for the reasons in Gilles-
pie, supra, I would vacate the sentence
and remand the cause to the trial court
with directions to properly appel- consider request suspended
lant’s for a sentence