Borden v. State

PARKS, Presiding Judge,

dissenting:

The advisory jury employed herein is neither authorized by our state constitution or by statute. Instead, our cases indicate that it is the duty of the trial court to impose sentence after a plea. Ex Parte Mougell, 96 Okl.Cr. 354, 255 P.2d 297 (1954). Accord Pettigrew v. Page, 444 P.2d 241 (Okl.Cr.1968). In fact, we have held the State has no right to have a jury summoned to consider punishment after a plea of guilty. Headrick v. Couch, 539 P.2d 748 (Okl.Cr.1975). It is certainly not an inherent power possessed by the trial court to call such a jury. It is clear the appellant was prejudiced by this unauthorized procedure, as the trial judge followed the jury’s “recommendation.” Accordingly, I dissent.