Sanders v. StateSanders v. State
- Reporters:
- , ,
- Before:
- Bussey
OPINION
BUSSEY, Judge:The appellant, Ernest Dean Sanders, was convicted in the District Court of Oklahoma County, Case No. CRF-79-4897, of Larceny of Merchandise Valued Over $20 From a Retailer, After Former Conviction оf Two or More Felonies, was sentenced to forty years’ imprisonment, and he appеals.
Briefly stated, the facts are that on December 10, 1979, the appellant was observеd carrying a large number of suits in his arms out the door of a C.R. Anthony *911 department store in Oklahoma City by Ron Mason, a police officer at the University of Oklahoma, who was there to visit his mother, а store employee. Mason told an employee to call the police and chased the appellant who was subsequently arrested when a patrol car arrived. Mason positively identified the appellant at the trial, and the store manager testified that ten suits were taken which had a value of $79 each.
The appellant, as his first assignment of error, complains that because the information charged him with “after former conviction of
a
felony,” the conviction that he received pursuant to the
two
felony portion of
For his second assignment of error, the appellant complains that during sеcond stage proceedings the trial court erred in giving a jury instruction which misstated the statutory punishment authorized on a finding of one former conviction as a minimum of ten years’ imprisonment whеn that was the maximum penalty that could have been imposed. The appellant offеred no objection to the court’s instruction nor did he offer a written request suggesting an instruction; therefore he has waived any defects. See, Williams v. State, 447 P.2d 456 (Okl.Cr.1968). Nevertheless, any error raised in the instruction was harmless as the jury found the appellant guilty of two or more former convictions, which сarries a punishment of imprisonment for not less than twenty (20) years. See, Coleman v. State, 540 P.2d 1185 (Okl.Cr.1976).
For his third assignment of error the appellant contends that the punishment imposed was excessive. We have consistently held that the question of excessiveness of punishment must be determined from a study of all the facts and circumstances in each particular case, and that this Court does not have the power to modify the punishment unless we can conscientiously say that under those facts and circumstances the sentence is so excessive as to shock the consciеnce of the Court. Franklin v. State, 553 P.2d 222 (Okl.Cr.1976). We cannot say that the sentence of forty years when the apрellant has four previous convictions for felonies shocks the conscience of the Court.
The appellant alleges as his fourth assignment of error that admission into evidence of three previous convictions which charge felonies “after former conviсtion of a felony” is improper because the judgment and sentence used to enhanсe those three felonies was not offered as evidence. The State proved the appellant’s prior convictions by introducing certified copies of the judgments and sentences. This was an appropriate method of proof. Suitor v. State, 629 P.2d 1266 (Okl.Cr.1981). Appellant further complains of the testimony of a State’s witness during the second stage that the appellant wаs originally fingerprinted in 1961. The record demonstrates that the appellant did not object tо the remark and therefore the error was not preserved. Bristow v. State, 644 P.2d 118 (Okl.Cr.1982). In view of the evidence оf four previous convictions, this comment can hardly be viewed as being prejudicial.
For his last assignment of error the appellant alleges that the trial court overruled the motion for new trial with no consideration of the issues raised in that motion. The appellant has mаde a bald assertion that the trial judge did not read the motion for new trial. However, at the hеaring on the motion, the court stated *912 that it had been considered. The decision to grant a new trial rests within the discretion of the trial judge, and this Court will not reverse absent an abuse of discretion. Hancock v. State, 664 P.2d 1039 (Okl.Cr.1983). Finding no abuse of discretion, this assignment of error is also without merit.
The judgment and sentence appealed from is AFFIRMED.
PARKS, P.J., and BRETT, J., concur.