Dewayne Eugene Ring v The State Of Oklahoma

RE-2004-445

Filed: Jul. 12, 2005

Not for publication

Prevailing Party: Dewayne Eugene Ring

Summary

Dewayne Eugene Ring appealed his conviction for Attempted Burglary in the Second Degree. His conviction and sentence were originally set for eight years, with nearly eight years of that sentence suspended. The State of Oklahoma claimed he violated probation, leading to the revocation of the suspended part of his sentence. The court agreed that the revocation was justified but accepted that his suspended sentence was not valid due to his previous felony convictions. The court has now decided to allow Dewayne to withdraw his guilty plea and either go to trial or have his remaining sentence served in prison. Judge Gary L. Lumpkin dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT, that Appellant's Judgment and Sentence in Case No. CF-2003-445 is VACATED and this matter is hereby REMANDED to the District Court of Pottawatomie County for further proceedings consistent with this Order. IT IS SO ORDERED.

Issues

• Was the revocation of the Appellant's entire suspended sentence excessive under the facts of this case?
• Should the Appellant be allowed an opportunity to withdraw his guilty plea due to the existence of two prior convictions and the lack of a proper waiver of the prohibition against a suspended sentence?
• Is the Appellant's suspended sentence void pursuant to the precedent in Bumpus v. State?

Findings

• Appellant's Judgment and Sentence in Case No. CF-2003-445 is VACATED.
• This matter is REMANDED to the District Court of Pottawatomie County for further proceedings consistent with the order.
• Appellant should be given the opportunity to withdraw his guilty plea or have the suspended portion of his sentence vacated and serve the balance in prison.

RE-2004-445

Jul. 12, 2005

Dewayne Eugene Ring

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY ORDER REMANDING MATTER TO THE DISTRICT COURT OF POTTAWATOMIE COUNTY

The Appellant, Dewayne Eugene Ring, has appealed to this Court from the revocation of the balance of his suspended sentence, seven (7) years and nine (9) months, in Case No. CF-2003-335 in the District Court of Pottawatomie County, before the Honorable Douglas L. Combs, District Judge. In that case, Appellant entered a plea of guilty to Attempted Burglary in the Second Degree, and was sentenced to a term of eight (8) years, with all suspended except the first ninety (90) days.

On March 15, 2004, the State filed a motion to revoke Appellant’s suspended sentence alleging he had violated probation by failing to submit to a random drug screen; and by failing to report as ordered. On April 21, 2004, the revocation hearing was held before Judge Combs. At the conclusion of the evidence, Judge Combs found that Appellant had violated probation as alleged and revoked the balance of Appellant’s suspended sentence, seven (7) years and nine (9) months. Appellant brings this appeal.

In this appeal, Appellant asserts two (2) propositions of error. He first contends the District Court’s revocation of Appellant’s entire suspended sentence was excessive under the facts of this case and should be modified. The second proposition contends that, because Appellant had two prior convictions that were known to the court, and there was no proper waiver of the prohibition against granting Appellant a suspended sentence, he should be allowed an opportunity to withdraw his guilty plea. We only address Appellant’s second proposition because the State concedes that proposition has merit.

Appellant argues, and the State agrees, that his suspended sentence is void pursuant to Bumpus V. State, 1996 OK CR 52, 925 P.2d 1208. The parties agree the record in this case was clear that Appellant was being sentenced upon his third or subsequent to his third conviction of a felony, and that he was not entitled to have any portion of his sentence suspended. Bumpus, 1996 OK CR 52 at 1114-10, 925 P.2d at 1209-10. Because Appellant’s plea was based upon the promise of a suspended sentence, we find Appellant should be returned to Pottawatomie County and given the opportunity to withdraw his guilty plea and proceed to trial in Case No. CF-2003-335. Bumpus V. State, 1996 OK OR 52 at q11, 925 P.2d at 1211. If Appellant does not wish to withdraw his plea, the District Court shall vacate the suspended portion of Appellant’s sentence and order him to serve the balance of the sentence in prison. Bumpus V. State, 1996 OK CR 52 at q12, 925 P.2d at 1211.

IT IS THEREFORE THE ORDER OF THIS COURT, that Appellant’s Judgment and Sentence in Case No. CF-2003-445 is VACATED and this matter is hereby REMANDED to the District Court of Pottawatomie County for further proceedings consistent with this Order.

IT IS SO ORDERED.

the WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 12 day of July, 2005.

CHARLES S. CHAPEL, Presiding Judge
GARY L. LUMPKIN, Vice Presiding Judge
CHARLES A. JOHNSON, Judge
ARLENE JOHNSON, Judge

ATTEST:
Michael S. Richie Clerk

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Footnotes:

1. Bumpus V. State, 1996 OK CR 52, 925 P.2d 1208.
2. Bumpus, 1996 OK CR 52 at 1114-10, 925 P.2d at 1209-10.
3. Bumpus V. State, 1996 OK OR 52 at q11, 925 P.2d at 1211.
4. Bumpus V. State, 1996 OK CR 52 at q12, 925 P.2d at 1211.
5. The unpublished decision of this Court in Phelps U. State, No. RE-2001-947 (Okl.Cr. October 2, 2002) should not be relied upon as a proper remedy in these types of cases.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentences for felony convictions
• Okla. Stat. tit. 21 § 51.1 (2011) - Definitions
• Okla. Stat. tit. 22 § 982 (2011) - Sentencing for felony convictions
• Okla. Stat. tit. 22 § 982.1 (2011) - Parole considerations
• Okla. Stat. tit. 57 § 510 (2011) - Revocation of probation

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:

• Bumpus v. State, 1996 OK CR 52, 925 P.2d 1208