Simpson v. Porter , 489 P.2d 788 ( 1971 )

MEMORANDUM OPINION

BRETT, Judge:

This is an original proceeding in habeas corpus in which petitioner seeks to be admitted to bail pending appeal from the judgment of the District Court of Cleveland County denying Post Conviction Relief.

It appears petitioner entered a plea of guilty to the charge of first degree manslaughter in the District Court of Cleveland County on May 10, 1971, and was sentenced to a term of ten (10) to thirty (30) years imprisonment. Subsequently, petitioner filed an application for Post Conviction Relief, Cleveland County Case No. CRF-71-141, in the District Court under 22 O.S.1971, Section 1080. A hearing thereon was conducted on July 21, 1971 and September 15, 1971, before Judge Elvin J. Brown who denied relief. Petitioner gave notice of appeal from said judgment and his request for bail pending appeal was denied.

Title 22 O.S.1971, Section 1087, provides for appeal from a District Court Judgment in a Post Conviction proceeding and states in part:

“Upon motion of either party on filing of notice of intent to appeal, within ten (10) days of entering the judgment, the district court may stay the execution of the judgment pending disposition on appeal; provided, the Court of Criminal Appeals may direct the vacation of the order staying the execution prior to final disposition of the appeal.” (Emphasis added).

We are of the opinion, that this section vests discretion in the District Court to allow bail pending an appeal from judgment in a post conviction proceeding. The question of bail is addressed to the District Court. If bail is denied and an application for bail is made to this Court, the burden is on the Petitioner to show the District Court abused its discretion. Generally when bail is denied below this Court will not allow bail absent a clear showing of compelling factors to do otherwise. Court Rule 4.2, subd. E.

As to the facts in this case, we find Petitioner has not shown an abuse of discretion by the District Court in denying bail pending the appeal. Accordingly, we rely upon our Rule 4.2, subd. E and denying the application of Petitioner to be admitted to bail. Writ denied.

BUSSEY, P. J., concurs. NIX, J., not participating.