OPINION
The appellant, Tommy E. Kirkendall, was convicted in the District Court of Pottawatomie County, Case No. CRF-83-263 of Second Degree Burglary, After Former Conviction of Two or More Felonies for which he received a sentence of thirty-seven and one-half years, and he appeals.
Since all five assignments of error raised by the appellant involve second stage proceedings, we deem a statement of the facts of this case unnecessary.
I
As his first assignment of error, the appellant аlleges that improper prosecutorial comments during the closing argument of the punishment phase resulted in the jury assessing an excessive sentence. As appellant’s second and fifth assignments of error also allege an excessive sentence, we shall deal with these arguments together. We must first note that only one comment was properly preserved by an objection. Therefore, we will only address the alleged error to which the appellant objected. See Parks v. State,
The appellant further complains that the jury sentenced the appellant to six months more than the thirty-seven years recommended by the prosecutor, and that this sentence was excessive under all of the facts and circumstances. A review of the record reveals that the appellant has five formеr felony convictions, three for grand larceny, and two for second degree burglary. In view of this, and after examining the other сomments of which the appellant complains in their context, the remarks of the prosecutor cannot be said tо be so prejudicial as to have adversely affected the fairness and impartiality of the proceedings. Nor cаn we agree with the complaint of the appellant that because this crime involved no danger of personal injury tо another that the sentence was therefore excessive. We have consistently held that the issue of excessive punishment must be determined by a study of all the facts and circumstances in each particular case, and unless the sentence is so excessive as to shock the conscience of this Court, we do not have the power to modify a sentence. Clark v. State,
As a third approaсh to this complaint of excessive punishment, the appellant argues that the sentence imposed as authorized by 21 O.S.1981, § 51(B) constitutes cruel or unusual punishment under Oklahoma’s Constitution. We have upheld the constitutionality of this statute many times on the grounds that its application does not constitute cruel or unusual punishment. Taylor v. State,
Moreover, the ‘fixing of penalties ... is legislative function, and sеntence within limits of applicable statute will not ordinarily be disturbed on appeal as unusual, excessive or cruel.’ [Citatiоn omitted].
Powell v. State,
Therefore, this assignment of error is without merit.
II
As his next assignment of error, the appellant argues that the prior convictions were not shown to be final. The record does not reveal an objection to the certified copies of the judgments and sentences on the grounds that they were not final, nor was this alleged error raised in the appellant’s motion for new trial. Therefore this assignment of error hаs not been properly preserved for appeal. See, Moore v. State,
III
As his final assignment of error, the appellant complains that the State presented insufficient evidеnce that he had sustained prior convictions. During the trial, the State offered certified copies of judgments and sentences, two of which were from 1967, one from 1972, and one from
The judgment and sentence is AFFIRMED.