concurring in part and dissenting in part:
Although I concur in the affirmance of the appellant's conviction, I cannot agree with the majority’s treatment of appellant’s fourth assignment of error. In holding that the trial court did not err in denying appellant’s request for a suspended sentence, the majority states that “[t]he court ... followed its statutory duty and imposed the sentence set by the jury.” Majority Opinion, at 210. Under Title 22 O.S.1981, § 926, the trial judge is directed to render a judgment according to the jury’s verdict “except as hereinafter provided.” Under 22 O.S.Supp.1983, § 991a, the trial judge was authorized to consider the appellant’s request for a suspended sentence, since a death sentence was not imposed and the appellant did not have two prior felony convictions. See 22 O.S.Supp.1983, § 991a(A)(l) & (B).
Appellant complains that the trial judge failed to properly consider his request for a suspended sentence, basing his denial on the fact that the appellant asserted his right to a jury trial. In response to the request for a suspended sentence, the trial judge stated:
THE COURT: Well, if you all wanted to go that route ... you all should have been pleading ahead of time. See, now the juries have their say and so I'm pretty much obligated to follow what they recommend. Went through a lot of trouble to get that, you know. Anything else?
Based on the foregoing, I believe that the instant case falls within the rule of Gillespie v. State, 355 P.2d 451, 456 (Okla.Crim.App.1960), wherein this Court vacated a sentence and remanded for proper consideration of a defendant’s application for a suspended sentence upon grounds sanctioned by law. In Gillespie, the trial judge stated in the record that he denied the application for a suspended sentence because the defendant had insisted on a jury trial. Id. at 456. From my reading of the transcript in this case, it appears that the trial judge refused to consider appellant’s request for a suspended sentence solely because he insisted on his right to a jury trial. As stated in Gillespie, supra, at 456:
A policy designed to deny defendant a suspended sentence solely because he demanded a jury trial is contrary to law and an unjustifiable denial of defendant’s rights to have his application for a suspended sentence considered upon its merits ... Whether the evidence before the court was sufficient to justify granting or denying the application is not the *211question before the court. The fact is that the court denied the application upon grounds not sanctioned by law.
Accordingly, while I would affirm the conviction, for the reasons given in Gillespie, supra, I would vacate the sentence and remand the cause to the trial court with directions to properly consider appellant’s request for a suspended sentence and grant or deny the same upon grounds sanctioned by law and not because appellant insisted on a jury trial.