State Of Oklahoma v Robert Carl Bennett

S-2007-885

Filed: Apr. 29, 2008

Not for publication

Prevailing Party: Robert Carl Bennett

Summary

Robert Carl Bennett appealed his conviction for Failure to Register as a Sex Offender. The conviction and sentence were upheld by the courts. All judges agreed, and none dissented.

Decision

The final rulings and orders of the Magistrate and the reviewing judge in Tulsa County District Court, Case No. CF-2007-3544, are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), MANDATE IS ORDERED ISSUED upon the filing of this decision.

Issues

• was there sufficient evidence presented at the preliminary hearing to bind the Appellee over for trial?
• did the Magistrate and trial court err in considering the defense of homelessness during the probable cause hearing?
• did the Magistrate and trial court err in holding that homelessness is a defense to a sex offender's duty to register?

Findings

• the court did not err
• the court did not err
• the court did not err

S-2007-885

Apr. 29, 2008

State Of Oklahoma

Appellant

v

Robert Carl Bennett

Appellee

SUMMARY OPINION

CHAPEL, JUDGE: Appellee was charged by Information in the District Court of Tulsa County, Case No. CF-2007-3544, with Failure to Register as Sex Offender. Following presentation of the State’s evidence at preliminary hearing, the Honorable Carlos J. Chappelle, Special Judge, sitting as Magistrate, sustained Appellee’s demurrer and declined to bind Appellee over for trial. The State thereupon initiated an appeal under the authority of 22 O.S.2001, § 1089.1. The Honorable Dana Kuehn, District Judge, was duly appointed to hear the appeal. On August 28, 2007, Judge Kuehn upheld the Magistrate’s orders. The State now appeals to this Court. This appeal was regularly assigned to this Court’s Accelerated Docket under Section XI of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008). Oral argument was held on April 10, 2008, and the Court considered Appellant’s propositions of error raised upon appeal:

Proposition 1
The Magistrate and trial court erred in holding the State had presented insufficient evidence at the preliminary hearing.

Proposition 2
The Magistrate and trial court erred in considering the defense of homelessness in a probable cause hearing.

Proposition 3
The Magistrate and trial court erred in holding that homelessness is a defense to a sex offender’s duty to register.

After hearing oral argument, and after a thorough consideration of Appellant’s propositions of error and the entire record before us on appeal, by a vote of five (5) to zero (0), we affirm. In state appeals brought under the procedures established at 22 O.S.2001 & Supp.2007, §§ 1089.1-1089.7, this Court reviews the factual findings of the Magistrate and District Judge for an abuse of discretion. The record of the proceedings below does not reveal an abuse of discretion in the Magistrate or District Judge’s decisions that there was insufficient evidence to hold Appellee for trial.

DECISION
The final rulings and orders of the Magistrate and the reviewing judge in Tulsa County District Court, Case No. CF-2007-3544, are AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), MANDATE IS ORDERED ISSUED upon the filing of this decision.

APPEARANCES AT TRIAL
JOHN DAVID LACKEY
ASSISTANT DISTRICT ATTORNEY
500 SOUTH DENVER
TULSA, OKLAHOMA 74103
ATTORNEY FOR STATE OF OKLAHOMA

RICK COUCH
ASSISTANT PUBLIC DEFENDER
423 SOUTH BOULDER
TULSA, OKLAHOMA 74103
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
JOHN DAVID LACKEY
ASSISTANT DISTRICT ATTORNEY
500 SOUTH DENVER
TULSA, OKLAHOMA 74103
ATTORNEY FOR APPELLANT

STUART W. SOUTHERLAND
ASSISTANT PUBLIC DEFENDER
423 S. BOULDER AVE., SUITE 300
TULSA, OKLAHOMA 74103
ATTORNEY FOR APPELLEE

OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR
C. JOHNSON, V.P.J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR

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Footnotes:

1. 22 O.S.2001, § 1089.1
2. 22 O.S.2001 & Supp.2007, §§ 1089.1-1089.7
3. State v. Swicegood, 1990 OK CR 48, 795 P.2d 527

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 1089.1 (2001)
• Okla. Stat. tit. 22 § 1089.1-1089.7 (2007)

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• State v. Swicegood, 1990 OK CR 48, 795 P.2d 527, 529