Earnest Cheparney Harjo v State Of Oklahoma
RE-2013-261
Filed: Feb. 19, 2014
Not for publication
Prevailing Party: State Of Oklahoma
Summary
Earnest Cheparney Harjo appealed his conviction for obtaining merchandise and cash by bogus check. Conviction and sentence were reversed. All judges except one, Johnson, concurred.
Decision
The revocation of Appellant's suspended sentences in Okmulgee County Case No. CM-2006-84 is REVERSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was there error in revoking Appellant's suspended sentences based on violations already punished?
- Did the trial court abuse its discretion by revoking Appellant's suspended sentences without evidence of willful failure to pay?
Findings
- the court erred
- the revocation of Appellant's suspended sentences is reversed
RE-2013-261
Feb. 19, 2014
Earnest Cheparney Harjo
Appellantv
State Of Oklahoma
Appellee
v
State Of Oklahoma
Appellee
SUMMARY OPINION
LEWIS, PRESIDING JUDGE:
On April 6, 2006, Appellant, represented by counsel, entered a guilty plea to three counts of Obtaining Merchandise and Cash by Bogus Check as charged in Okmulgee County Case No. CM-2006-84. Harjo was sentenced to one year for each count, all suspended, subject to terms and conditions of probation. The sentences were to be served consecutively.
On June 17, 2003, Harjo stipulated to probation violations as alleged in the State’s application to revoke, filed March 21, 2007. The District Court of Okmulgee County, the Honorable Duane Woodliff, Associate District Judge, ordered Harjo to make payments as ordered and continued sentencing until September 18, 2008. The record reflects that Harjo failed to appear on September 18, 2008, and a bench warrant was issued for his arrest. It was not until June 1, 2011 that the District Court revoked Harjo’s suspended sentences in full, at which time he was ordered to complete a drug and alcohol program while incarcerated. On August 4, 2011, over the State’s objection, Judge Woodliff again suspended the remainder of Harjo’s sentences.
On April 4, 2012, the State filed a second application to revoke, alleging again that Harjo violated terms and conditions of probation by failing to make payments as ordered by the court. On April 26, 2012, the State filed an amended application to revoke alleging Harjo admitted using drugs. Harjo did not appear for the May 3, 2012 revocation hearing and a bench warrant was issued for his arrest. On March 6, 2013, the court was finally able to conduct a revocation hearing. The State did not present any evidence at the hearing, indicating that it was proceeding on the original application to revoke, to which Harjo had stipulated. Judge Woodliff revoked Harjo’s remaining suspended sentences in full.
From this judgment and sentence, Harjo appeals, raising the following propositions of error:
1. It was error for the trial court to revoke Appellant’s suspended sentences based on violations for which he had already been punished; and
2. The revocation of Appellant’s suspended sentences was an abuse of discretion because no evidence demonstrated that Appellant’s failure to pay was willful.
Because the State confesses error in this matter, we REVERSE the district court’s ruling revoking Harjo’s remaining suspended sentences. It is unnecessary to address Harjo’s second proposition of error in light of the reversal of the revocation of his suspended sentences.
On June 1, 2011, Harjo’s suspended sentences were revoked on the basis of the State’s original application to revoke filed March 21, 2007. The district court sentenced Harjo to jail and ordered him to complete a drug and alcohol program while incarcerated. The court stated that it would review the sentences upon Harjo’s successful completion of the program. On August 11, 2011, the court reviewed the sentences and re-suspended the remainder of Harjo’s suspended sentences. At that point, Harjo had already been punished for the violations alleged in the State’s original application to revoke. Any subsequent attempt to revoke Harjo’s remaining suspended sentences must be based upon a subsequent violation and an application to revoke alleging the new violations. *Robinson v. State*, 1991 OK CR 44, ¶ 3, 809 P.2d 1320. The trial court erred when it revoked Harjo’s suspended sentences at the March 6, 2013 revocation hearing based on the allegations in the March 21, 2007 application to revoke and Harjo’s stipulation to the same.
DECISION
The revocation of Appellant’s suspended sentences in Okmulgee County Case No. CM-2006-84 is REVERSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
APPEARANCES AT TRIAL APPEARANCES ON APPEAL
DAVID BALL ROBERT W. JACKSON
ATTORNEY AT LAW OKLAHOMA INDIGENT DEFENSE
P.O. BOX 998 P.O. BOX 926
OKMULGEE, OK 74447 NORMAN, OK 73070
COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT
CAROL ISKI E. SCOTT PRUITT
ASST. DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA
OF OKMULGEE COUNTY DISTRICT ATTORNEY’S OFFICE
314 WEST 7TH STREET 313 NE 21ST STREET
OKMULGEE, OK 74447 OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE COUNSEL FOR THE APPELLEE
OPINION BY: LEWIS, P.J.:
SMITH, V.P.J.: Concurs
LUMPKIN, J.: Concurs
C. JOHNSON, J.: Concurs
A. JOHNSON, J.: Concurs
Footnotes:
- Okla. Stat. tit. 22 § 18.
- Robinson v. State, 1991 OK CR 44, ¶ 3, 809 P.2d 1320.
- Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2014).
Oklahoma Statutes citations:
No Oklahoma statutes found.
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:
- Robinson v. State, 1991 OK CR 44, II 3, 809 P.2d 1320