Richard A. Kasiah v The State Of Oklahoma

RE-2005-863

Filed: Nov. 3, 2006

Not for publication

Prevailing Party: Richard A. Kasiah

Summary

Richard A. Kasiah appealed his conviction for burglary and concealing stolen property. His original sentences were for seven years for two counts of burglary, five years for concealing stolen property, and seven years for four counts of burglary, but all sentences were supposed to be served at the same time. After he broke the terms of his probation by committing new crimes, the state asked for his sentence to be changed. The court decided to give him more time, but they mistakenly made the new sentence run one after the other instead of at the same time. The appeals court agreed that this was wrong and changed it so that his sentences would run together as they were originally supposed to. However, they did not give him credit for time served in jail because he was also dealing with a different charge, which the court thought was alright. Kasiah's appeal resulted in the change of his sentences to be served concurrently, but the court's decision about not giving him credit for time served was upheld. Judge Holene Johnson dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the order of the Washington County District Court revoking Appellant's suspended sentences in Case Nos. CF-2005-122, CF-2005-123 and CF-2005-145 is AFFIRMED, but MODIFIED SO that the revoked sentences are ordered to run CONCURRENTLY as originally ordered. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the filing of this decision. IT IS SO ORDERED.

Issues

• Was there authority for the District Court to order the revoked sentences to run consecutively?
• Did the District Court abuse its discretion in deciding not to award credit for time served?

Findings

• the court erred in ordering the revoked sentences to run consecutively
• there was no abuse of discretion in denying credit for time served

RE-2005-863

Nov. 3, 2006

Richard A. Kasiah

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ORDER GRANTING RELIEF IN PART IN REVOCATION APPEAL

On April 1, 2005, Appellant entered pleas of guilty in Case No. CF-2005-122, to two counts of Burglary in the Second Degree, in Case No. CF-2005-123 to Knowingly Concealing Stolen Property, and in Case No. CF-2005-145, to four counts of Burglary in the Second Degree. Appellant was sentenced to seven (7) years incarceration on both counts in CF-2005-122, to five (5) years incarceration in Case No. CF-2005-123, and seven (7) years incarceration on all four counts in Case No. CF-2005-145. The sentences were suspended and ordered to be served concurrently. On June 2, 2005, the State filed an Application to Revoke Suspended Sentence.¹ On August 31, 2005, a hearing was held before the Honorable Curtis DeLapp, Associate District Judge. At the conclusion of that hearing, Appellant’s sentences were revoked and ordered to be served consecutively.

In his first proposition of error, Appellant argues the District Court lacked authority to order his revoked sentences to run consecutively. We agree² and the State concedes error in this regard. See Degraffenreid v. State, 1979 OK CR 88, 599 P.2d 1107. Accordingly, Appellant is entitled to relief in that the District Court’s order of revocation is MODIFIED so that the sentences are ordered to run concurrently, as originally ordered.

In his final assignment of error, Appellant asserts he is entitled to time served in the county jail. This Court has held that the decision to give credit for time served is up to the sound discretion of the trial court. See Shepard v. State, 1988 OK CR 97, 756 P.2d 507, 602. Based on the fact Appellant was serving time on a new, unrelated charge, we find no abuse of discretion in the District Court’s decision to not award credit for time served.

IT IS THEREFORE THE ORDER OF THIS COURT that the order of the Washington County District Court revoking Appellant’s suspended sentences in Case Nos. CF-2005-122, CF-2005-123 and CF-2005-145 is AFFIRMED, but MODIFIED so that the revoked sentences are ordered to run CONCURRENTLY as originally ordered. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the filing of this decision. IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 3rd day of November 2006.

CHARLES S. CHAPEL, Presiding Judge
GARY L. LUMPKIN, Vice Presiding Judge
CHARLES A. JOHNSON, Judge
ARLENE JOHNSON, Judge
DAVID B. LEWIS, Judge
ATTEST:
Rich Clerk

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Footnotes:

1. Okla. Stat. tit. 21 § 1436
2. Degraffenreid v. State, 1979 OK CR 88, 599 P.2d 1107
3. Shepard v. State, 1988 OK CR 97, 756 P.2d 507
4. Okla. Stat. tit. 22 § 778

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1431 - Definitions related to burglary
• Okla. Stat. tit. 21 § 51 - Sentencing, punishment provisions
• Okla. Stat. tit. 21 § 701.8 - Sentencing for felonies
• Okla. Stat. tit. 22 § 982 - Credit for time served

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:

• Degraffenreid v. State, 1979 OK CR 88, 599 P.2d 1107
• Shepard v. State, 1988 OK CR 97, 756 P.2d 507, 602