Roth v. StateRoth v. State
- Reporters:
- , ,
- Before:
- Bussey
OPINION
BUSSEY, Judge:On appeal from her conviction in the District Court for Cоmanche County, Case No. CRM-83-900, on the charge of Soliсiting, for which she was sentenced to six (6) months’ imprisonment and fined one thousand ($1,000) dollars, the appellant raises two assignments of error.
For her first assignment of error the aрpellant alleges that the information on which she wаs subsequently convicted was insufficient to apprise hеr of the charges against her and that therefore shе could not prepare an adequate defense. The original record is void of a demurrer or motion to quash. Failure to file such demurrer or motion waives аny defect in the information except where the court has no jurisdiction over the subject matter.
Nealy
*217
v. State,
636 P.2d 378 (Okl.Cr.1981). The informаtion clearly shows that the charge was filed under authority of
For her second assignment of error the aрpellant alleges that the six (6) months’ sentence and the one thousand ($1,000) dollar fine were excessive. During sentencing the appellant’s attorney requested that thе court reduce the sentence because other defendants had been receiving thirty-day sentencеs upon conviction for the same charge. The сourt denied the motion stating that the appellant had admitted in her testimony during direct examination that she had bеen previously convicted of both soliciting and armed robbery. The appellant argues that the court’s knоwledge of her past convictions came as a result of her decision to present a defense. Thе implication of the appellant is that error wаs committed by the trial court in considering her testimony When rеfusing to reduce the sentence set by the jury. The apрellant does not cite any authority to support hеr bald contention. This Court has repeatedly stated that whether or not the punishment imposed is excessive is tо be determined by a study of all the facts and circumstances surrounding each individual case. This Court does not havе the power to modify a sentence unless after suсh a study we can conscientiously say that the sentence is so excessive as to shock the conscience of the Court. Failes v. State, 589 P.2d 1080 (Okl.Cr.1979). Considering the evidence of the appellant’s guilt, and the fact that the sentence imрosed was one-half of what could have been imposed, we cannot say that the sentence assеssed shocks the conscience of this Court.
An examination of the record shows that the trial court found the appellant to be indigent. We are of the opiniоn that justice would best be served by modifying the judgment and sentence to a term of six (6) months’ imprisonment, and as so modified, the judgment and sentence is AFFIRMED.
PARKS, P.J., and BRETT, J., concur.