Gary Don Caudill v The State Of Oklahoma

F-2002-708

Filed: Mar. 6, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Gary Don Caudill appealed his conviction for Robbery with a Dangerous Weapon. The court originally sentenced him to thirty-five years in prison and a $2000 fine, which was longer than the eighteen years the jury recommended. The court agreed that this was an error because it was based on a non-final opinion that was withdrawn. The court changed Caudill's sentence to match the jury's recommendation of eighteen years imprisonment and kept the $2000 fine. The judges all agreed with this decision, but one judge, whose name wasn't mentioned, disagreed with the original sentence.

Decision

The judgment of the district court is AFFIRMED, but the sentence is MODIFIED to eighteen years imprisonment and a $2000 fine.

Issues

• Was there an error in the district court's authority to impose a sentence greater than the jury's recommendation?
• Did the State's presentation of evidence in aggravation of sentence lead to an improper sentence increase?
• Was the prior, non-final opinion in Malone relevant to the sentencing issue raised by the Appellant?

Findings

• the court erred
• the sentence was modified to eighteen years imprisonment and a $2000 fine

F-2002-708

Mar. 6, 2003

Gary Don Caudill

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

PER CURIAM: Appellant, Gary Don Caudill, was tried by jury in Stephens County District Court Case No. CF-2001-263 for Robbery with a Dangerous Weapon (21 O.S.2001, § 801). Jury trial was held April 16 and 17, 2002 before the Honorable George W. Lindley, District Judge. The jury found Appellant guilty as charged and recommended a sentence of eighteen years imprisonment. At sentencing, the State presented evidence in aggravation of sentence and asked the court to sentence Appellant to a term of imprisonment greater than the jury had recommended. The district court imposed a thirty-five-year sentence and a $2000 fine. Formal sentencing was held May 20, 2002. Appellant timely lodged this appeal.

In his sole assignment of error, Appellant, relying on Malone v. State, 2002 OK CR 34, 58 P.3d 208 (Opinion on Rehearing), contends that the district court lacked authority to sentence him to a term of imprisonment greater than that recommended by the jury. We agree. The State’s presentation of evidence in aggravation of sentence, and the district court’s decision to increase the term of imprisonment, were based on a prior, non-final opinion in Malone, which was eventually withdrawn and superseded on rehearing. The State concedes that error occurred. Appellant’s sentence is therefore MODIFIED to a term of eighteen years imprisonment and a $2000 fine. See Luker v. State, 1976 OK CR 135, I 12, 552 P.2d 715, 719; 21 O.S. § 64(B); Fite v. State, 1993 OK CR 58, I 11, 873 P.2d 293, 295.

DECISION

The judgment of the district court is AFFIRMED, but the sentence is MODIFIED to eighteen years imprisonment and a $2000 fine.

AN APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY

THE HONORABLE GEORGE W. LINDLEY, DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

JAMES W. BERRY LEE ANN JONES PETERS
INDIGENT DEFENSE SYSTEM INDIGENT DEFENSE SYSTEM
100 N. BROADWAY, SUITE 2850 1623 CROSS CENTER DRIVE
OKLAHOMA CITY, OK 73102 NORMAN, OK 73019
ATTORNEY FOR DEFENDANT ATTORNEY FOR APPELLANT

JERRY HERBERGER W. A. DREW EDMONDSON
ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA
STEPHENS COUNTY COURTHOUSE KELLYE BATES
DUNCAN, OK 73533 ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR THE STATE 112 STATE CAPITOL
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR THE STATE

OPINION BY: PER CURIAM

JOHNSON, P.J.: CONCURS BY STARE DECISIS
LILE, V.P.J.: CONCURS
LUMPKIN, J.: CONCURS
CHAPEL, J.: CONCURS
STRUBHAR, J.: CONCURS

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Footnotes:

1. 21 O.S.2001, § 801
2. Malone v. State, 2002 OK CR 34, 58 P.3d 208 (Opinion on Rehearing)
3. Luker v. State, 1976 OK CR 135, I 12, 552 P.2d 715, 719
4. 21 O.S. § 64(B)
5. Fite v. State, 1993 OK CR 58, I 11, 873 P.2d 293, 295

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 (2001) - Robbery with a Dangerous Weapon
• Okla. Stat. tit. 21 § 64(B) - Sentences

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:

• Malone v. State, 2002 OK CR 34, 58 P.3d 208
• Luker v. State, 1976 OK CR 135, 552 P.2d 715
• Fite v. State, 1993 OK CR 58, 873 P.2d 293