Roger Dale Fultz v The State Of Oklahoma
RE 2001-0351
Filed: Jan. 25, 2002
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Roger Dale Fultz appealed his conviction for violating probation. Conviction and sentence were changed from consecutive to concurrent. Charles S. Chapel dissented.
Decision
It is from this Judgment and Sentence Upon Revocation, that [Appellant] now appeals. On appeal, Appellant raises the following proposition of error: "The trial court erred in ordering the revoked sentences to run consecutively, when a previous order suspending sentence ordered the sentences to be served concurrently." On January 14, 2002, the State filed a Motion to Confess Error requesting this Court find in Appellant's favor as to this proposition of error as "[t]he District Court had no authority to order that Appellant's sentences be served consecutively when the original sentences were run concurrently." Accordingly, Appellee's motion is GRANTED. This matter is REMANDED to the District Court of Bryan County with INSTRUCTIONS to enter an amended Judgment and Sentence in District Court Case No. CF-2000-316 ordering Appellant's revoked sentence be served concurrently, not consecutively, to Case No. CF-1998-301. The Clerk of this Court is directed to transmit a copy of this Order to the Honorable Farrell M. Hatch, District Judge, District Court of Bryan County, as well as to counsel of record. IT IS SO ORDERED.
Issues
- Was there an error in the trial court's decision to order the revoked sentences to run consecutively instead of concurrently?
- Did the trial court have the authority to change the sentencing arrangement from concurrent to consecutive?
Findings
- the trial court erred in ordering the revoked sentences to run consecutively
- the District Court had no authority to change the previous order for concurrent sentences
- the motion to confess error was granted
- the matter is remanded to the District Court to amend the judgment to reflect concurrent sentences
RE 2001-0351
Jan. 25, 2002
Roger Dale Fultz
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
ORDER GRANTING APPEAL AND REMANDING MATTER TO DISTRICT COURT OF BRYAN COUNTY WITH INSTRUCTIONS TO ENTER AN AMENDED JUDGMENT AND SENTENCE
On January 14, 2002, the State of Oklahoma, by and through William R. Holmes, Assistant Attorney General, filed Appellee’s Motion To Confess Error in the above styled appeal from the revocation of Appellant’s suspended sentence in the District Court of Bryan County, Case No. CF-2000-316. The statement of the case and facts as set forth in Appellant’s Brief are as follows:
On July 20, 1998, [Appellant] was charged by Information in Bryan County District Court Case No. CF-98-301 with Count I – Driving Under the Influence of Intoxicating Liquor in violation of Okla.Stat.tit. 47, §11-902 (1998), and two (2) misdemeanor counts which are not at issue in this appeal. (O.R.I.1-3)
On September 10, 1998, [Appellant] entered a no contest plea and received a five (5) year sentence with all but the first year suspended for Count I, and a now successfully discharged one (1) year suspended sentence running concurrently with Count I for the misdemeanor charge in Count II. (O.R.11-23)
On July 25, 2000, [Appellant] was charged by Information in Bryan County District Court Case No. CF-2000-316 with five (5) counts of Uttering a Forged Instrument in violation of Okla.Stat.tit 21, § 1592 (1991). (O.R.II 1-3)
On August 21, 2000, the trial court revoked one (1) year of Appellant’s suspended sentence for a subsequent violation of the law which violated Appellant’s Rules and Conditions of Probation in CF-98-301. (O.R.I. 25-26, 31-33)
On October 18, 2000, Appellant entered a no contest plea in CF-00-316 to one count of Uttering a Forged Instrument, the other counts were dismissed. (O.R.II, 13, 18-22, 25-29)
When [Appellant] entered his plea to the offense in CF-2000-316 on October 18, 2000, he, the State, and the trial court in that case agreed that he would be sentenced to a term of five (5) years with all but one (1) year suspended, with said term to be served concurrently with CF-98-301. (O.R.II 18-22, 25-26)
The trial court accepted Appellant’s plea and ordered the sentence in CF-00-316 to be served concurrently with that in CF-98-301. (O.R.II 22, 26)
On February 20, 2001, the State filed an Application to Revoke in both CF-98-301 and CF-2000-316. (O.R.I.35; O.R.II.30)
At the revocation hearing held March 19, 2001, the trial court revoked the balance of [Appellant’s] probation in both cases and ordered the sentences in the two cases to run consecutively to each other (O.R.I.50, 56-57; O.R.II 33, 51-53; Tr. 18-19) Defense counsel objected to the consecutive sentences arguing the trial court lacked authority to withdraw the previous order which ran those two (2) sentences concurrently. (Tr.1)
It is from this Judgment and Sentence Upon Revocation, that [Appellant] now appeals.
On appeal, Appellant raises the following proposition of error: The trial court erred in ordering the revoked sentences to run consecutively, when a previous order suspending sentence ordered the sentences to be served concurrently.
On January 14, 2002, the State filed a Motion to Confess Error requesting this Court find in Appellant’s favor as to this proposition of error as [t]he District Court had no authority to order that Appellant’s sentences be served consecutively when the original sentences were run concurrently.
Accordingly, Appellee’s motion is GRANTED. This matter is REMANDED to the District Court of Bryan County with INSTRUCTIONS to enter an amended Judgment and Sentence in District Court Case No. CF-2000-316 ordering Appellant’s revoked sentence be served concurrently, not consecutively, to Case No. CF-1998-301.
The Clerk of this Court is directed to transmit a copy of this Order to the Honorable Farrell M. Hatch, District Judge, District Court of Bryan County, as well as to counsel of record.
IT IS SO ORDERED.
Footnotes:
- Okla. Stat. tit. 47, § 11-902 (1998)
- Okla. Stat. tit. 21, § 1592 (1991)
Oklahoma Statutes citations:
- Okla. Stat. tit. 47 § 11-902 (1998) - Driving Under the Influence of Intoxicating Liquor
- Okla. Stat. tit. 21 § 1592 (1991) - Uttering a Forged Instrument
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:
No case citations found.