The opinion
BRETT, Judge
(dissents):
I must respectfully dissent to this decision, notwithstanding this Court’s holding in Evans v. Page, supra. This Court is endowed with authority to modify or direct the correction of any judgment and sentence before it for consideration, when the proper administration of justice requires action. This is one of those situations in which I believe justice demands an application of that authority. The result of this decision violates the rules of fundamental fairness frequently referred to by the United States Supreme Court.
When a person is required to serve penitentiary time on a judgment and sentence which is subsequently voided, and is then required to serve a full consecutive sentence which was imposed at the same hearing, without any credit or consideration whatsoever, such requirement smacks at injustice in the name of justice.
The American Bar Association Standards Relating to Sentencing Alternatives and Procedures recommends that such credit be allowed. In paragraph 3.6(c), the following is provided:
“If a defendant is serving multiple sentences, and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum term and any minimum term of the remaining sentences should be given for all time served since the commission of the offenses on which the sentences were based.”
The discussion of the foregoing paragraph cites King v. United States, 69 App.D.C. 10, 12-13 , 98 F.2d 291, 293 (1938), as follows:
“The Government’s brief suggests, in the vein of The Mikado, that because the first sentence was void appellant ‘has served no sentence but has merely spent time in the penitentiary;’ that since he should not have been imprisoned as he was, he was not imprisoned at all. . As other corollaries it might be suggested that he is liable in quasi-contract for the value of his board and lodging, and criminally liable for obtaining them by false pretenses. We cannot take this optimistic view.”
The facts in the instant matter reveal that on October 21, 1966, four separate judgments and sentences were imposed on petitioner at the same hearing, with court appointed counsel being present. The first sentence was for fifteen (15) years imprisonment; the second sentence was for ten (10) years, to run consecutively to the first; and the third and fourth sentences were for five (5) years each, to run concurrently, but consecutively to the ten year sentence. Petitioner attempted to appeal the fifteen year sentence without success. The trial court denied petitioner’s appeal, stating that the notice of intent to appeal was not timely filed; this Court affirmed the trial court, and petitioner appealed to the United States Court of Appeals without success.
Petitioner commenced a post conviction proceeding which was denied by the trial court and this Court. Petitioner again proceeded through the federal courts; but the second time, the Court of Appeals remanded the appeal to the United States District Court for evidentiary hearing. On December 20, 1972, at the conclusion of that hearing, the United States District Court ordered: “The [U.S. District] Court allows a reasonable time from the date of this Order within which Petitioner shall be afforded his right to appeal.” The Oklahoma Court of Criminal Appeals granted the appeal and reversed and remanded the *347 conviction. Subsequently the original information was dismissed. Now, in this action, petitioner is attempting. to get credit for the six years he spent in the State Penitentiary during these proceedings, and to have that time applied toward the satisfaction of the ten year sentence imposed at the same hearing on October 21, 1966.
I believe petitioner is entitled to receive that credit, as recommended by the ABA Standards. It is sheer folly to hold in this decision that such credit cannot be allowed, because it has never been done before. See: 68 A.L.R.2d 617 , § 2 [a] and [b], for cases in which credit has been allowed. In such cases it is not uncommon to allow such referral of credit in federal cases, in which defendant was convicted under several counts in one indictment; and in which the earlier count was reversed for legal reasons.
Therefore, I respectfully dissent to this decision.