Robert Eugene Schwab v State Of Oklahoma

M-2007-192

Filed: Jan. 14, 2008

Not for publication

Prevailing Party: Robert Eugene Schwab

Summary

Robert Eugene Schwab appealed his conviction for three counts of Threatening by Telephone or Other Electronic Communication. The court found him guilty and sentenced him to 6 days in jail and a fine of $570 for each count. The court eventually decided that Schwab's conviction wasn't valid because the crime he was convicted of didn't exist when he sent the email. The judges reversed his conviction and ordered the case to be dismissed. Judge Lumpkin disagreed with the outcome.

Decision

The Judgment and Sentence is REVERSED. This matter is REMANDED to the District Court of Creek County with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there an ex post facto violation in Appellant's conviction requiring dismissal?
• Did the jury's conviction of a lesser offense constitute a valid adjudication when the crime was not recognized at the time of the alleged act?

Findings

• Appellant's convictions should be reversed with instructions to dismiss due to ex post facto violation.
• The judgment and sentence is reversed.
• This matter is remanded to the District Court with instructions to dismiss.

M-2007-192

Jan. 14, 2008

Robert Eugene Schwab

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant, Robert Eugene Schwab, was tried by a jury in the District Court of Creek County, Case No. D-CF-2003-129 and found guilty of three counts of Threatening by Telephone or Other Electronic Communication in violation of 21 O.S.Supp.2005, § 1172. The jury fixed punishment at 6 days in the Creek County jail and fined Appellant $570 for each count. The Honorable M. John Kane, IV, District Judge, sentenced Appellant accordingly. From this judgment and sentence, Appellant appeals.

This case raises the issue whether Appellant’s conviction is an ex post facto violation requiring dismissal. We find, pursuant to the State’s confession of error filed December 4, 2007, that Appellant’s convictions should be reversed with instructions to dismiss. As noted by Appellant, he was charged with three counts of Transmitting a Threatening Letter in violation of 21 O.S. § 1304. His preliminary hearing was conducted on April 15, 2004 and he was bound over for trial. At trial, the jury refused to convict Appellant of the charged offense, instead finding him guilty of the lesser included offense of Threats or Harassment by Telephone or Other Electronic Communication. As noted by Appellant and confessed by the State, however, the crime Appellant was convicted of was not a crime at the time Appellant composed and transmitted the e-mail that was the subject of the charges. Barnes v. State, 1990 OK CR 23, III 3-4, 791 P.2d 101, 102-103.

DECISION

The Judgment and Sentence is REVERSED. This matter is REMANDED to the District Court of Creek County with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY

THE HONORABLE M. JOHN KANE, IV, DISTRICT JUDGE

APPEARANCES AT TRIAL

R. LAWRENCE ROBERSON
OKLAHOMA INDIGENT DEFENSE
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT

MAX COOK
DISTRICT ATTORNEY

APPEARANCES ON APPEAL

RICKI J. WALTERSCHEID
732 E. TAFT
SAPULPA, OK 74066
COUNSEL FOR APPELLANT

A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

MIKE LOEFFLER
GAYLAND GIEGER
WILLIAM R. HOLMES
ASSISTANT ATTORNEY GENERAL
ASSISTANT DISTRICT ATTORNEY
313 N.E. 21ST STREET
OKLAHOMA CITY, OK 74105
COUNSEL FOR THE STATE

OPINION BY: A. JOHNSON, JUDGE
LUMPKIN, P.J.: Concur in results
C. JOHNSON, V.P.J.: Concur
CHAPEL, J.: Concur
LEWIS, J.: Concur

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Footnotes:

1. 21 O.S.Supp.2005, § 1172
2. 21 O.S. § 1304
3. Barnes v. State, 1990 OK CR 23, III 3-4, 791 P.2d 101, 102-103
4. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1172 - Threatening by Telephone or Other Electronic Communication
• Okla. Stat. tit. 21 § 1304 - Transmitting a Threatening Letter

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:

• Barnes v. State, 1990 OK CR 23, III 3-4, 791 P.2d 101, 102-103