Appeal from the County Court of Rogers County; Ava Powell, Judge.

Plaintiffs in error, Steven Michael Earle, and Timothy M. Wise, were charged with the offense of Vagrancy, entered pleas of guilty, were assessed fines and court costs, and appeals. Judgments and sentences reversed and remanded, with instructions.

John L. Arrington, Jr., and John A. Gaberino, Jr., of Huffman, Arrington, Scheurich & Kincaid, Tulsa, for plaintiffs in error.

G.T. Blankenship, Atty. Gen., Dale F. Crowder, Asst. Atty. Gen., for defendant in error.

CONSOLIDATED MEMORANDUM OPINION

BRETT, Presiding Judge.

¶1 The above two appeals are herewith consolidated in this opinion of the Court.

¶2 On December 20, 1968, plaintiffs in error, Steven Michael Earle and Timothy M. Wise, were arrested by two Rogers County Deputy Sheriffs, Oscar Stannaford, Jr., and Art Griffith. Plaintiffs in error will hereafter be referred to as defendants, as they appeared in the trial court.

¶3 Defendants were traveling from California to Washington, D.C., and while they were in the Howard Johnson Restaurant on the Interstate Highway near Claremore, Oklahoma, they were arrested by the Two Deputy Sheriffs on charges of "Vagrancy." They were taken to the county jail, and the automobile owned by Timothy Wise was ordered towed into Claremore. After spending some period of time in the county jail — but on the same day — defendants entered pleas of "guilty," and were assessed fines of Twenty-Five Dollars, and Court Costs of Fourteen Dollars, each. Upon payment of the fines and court costs, they were released.

¶4 On December 30, 1968, defendants through retained counsel filed a Motion for New Trial, and a Motion to Vacate judgment and sentence in the County Court of Rogers County; and on January 14, 1969, defendants sought permission to file an Amended Motion for New Trial, requesting permission to withdraw the pleas of "guilty" and to substitute therefor pleas of "not guilty" in County Court cases number 10950, and 10951, which was denied. Thereafter, defendants' motion for new trial was overruled, and the appeals were lodged in this Court.

¶5 In these appeals, both defendants assert as their propositions of error: that their arrest was without sufficient cause; that they were denied counsel; and that their pleas of guilty were entered under duress. They further contend that their motions to withdraw their pleas of guilty should have been granted by the trial court.

¶6 In both appeals, the Attorney General filed a Response recommending that the cases be reversed and remanded.

¶7 After considering the petitions in error, briefs, and affidavits — filed with permission of the Court — we are are of the opinion that the defendants' contentions of error are well taken. Under the facts of these cases, we conclude that the Motions to withdraw the pleas of "guilty" and substitute therefor pleas of "not guilty," should have been granted; and the failure of the trial court to grant such requests was reversible error. See: Conley v. State, Okl.Cr., 444 P.2d 252; Copenhaver v. State, Okl.Cr., 431 P.2d 669; In Re Cannon, Okl.Cr., 351 P.2d 756; and Jackson v. State, Okl.Cr., 316 P.2d 213, 215; reference to assistance of counsel. For the offense of "Vagrancy," See: 21 O.S. § 1141 [21-1141]; and also see: Graham v. State, Okl.Cr., 447 P.2d 200, 203; and Huff v. State, 34 Okl.Cr. 261, 246 P. 496, cited in Graham, supra.

¶8 It is therefore the order of this court, that the convictions of both defendants: Timothy M. Wise, and Steven Michael Earle, are reversed and remanded to the District Court of Rogers County, with instructions to dismiss the charges initially filed in Rogers County Court case numbers 10950, and 10951; and it is the further order of this Court, that the fines and court costs assessed each defendant shall be refunded to each party respectively.

BUSSEY, and NIX, JJ., concur.