Blog

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA STACY GENE BELLIS, ) ) Appellant, ) NOT FOR PUBLICATION ) V. ) Case No. RE-2012-1076 ) FILED THE STATE OF OKLAHOMA, ) IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) APR 18 2014 SUMMARY OPINION MICHAEL S. RICHIE A. JOHNSON, JUDGE: CLERK Appellant Stacy Gene Bellis pled guilty in the District Court of Oklahoma County, Case No. CF-2009-624, to one count of Assault and Battery with a Dangerous Weapon in violation of 21 O.S.Supp.2006, 645. The district court sentenced Bellis to twelve years, with the balance suspended upon completion of a Department of Corrections’ drug treatment program. The State filed an Application to Revoke Suspended Sentence because of new crimes Bellis allegedly committed that were charged in Oklahoma County Case No. CF-2011- 3858. The Honorable Donald L. Deason held a hearing on the application and found by a preponderance of the evidence that Bellis had committed the new crime of assault and battery with a deadly weapon as alleged in Count 3 of CF- 2011-3858. Judge Deason revoked Bellis’ suspended sentence in full and ordered the revoked sentence to run concurrently with Bellis’ sentence in CF- 2011-3858. From the order revoking his suspended sentence, Bellis appeals raising the following issues: (1) whether the district court erred by taking judicial notice of and incorporating the evidence from his trial in Case No. CF-2011-3858 as support for the application to revoke; and (2) whether his case requires dismissal because of insufficient evidence. We find the district court’s revocation order must be reversed and the matter remanded for a new hearing on the State’s application to revoke Bellis’ suspended sentence for the reasons discussed below. No other relief is required. The district court presided over Bellis’ trial in CF-2011-3858 that resulted in his conviction on Count 3. Several weeks later, the district court heard the State’s application to revoke suspended sentence. It took judicial notice of evidence from Bellis’ separate jury trial in CF-2011-3858 as the sole proof to support the State’s application to revoke suspended sentence. In Linscome v. State, 1978 OK CR 95, 11 3-6, 584 P.2d 1349, 1350, the Court held it was error to issue a revocation order based on taking judicial notice of evidence presented in another hearing/trial (even one held the same day) when the defendant had not stipulated to that evidence. The Linscome Court stated: Concerning the second factor, no matter that has been put in issue by the pleadings can be considered undisputed for purposes of judicial notice. In the instant case, the application to revoke the suspended sentence put into issue the question of whether the appellant had violated the terms of his suspended sentence by committing the offense of Larceny of Merchandise From a Retailer. The State was obligated to prove the facts it had pled, and the appellant did not stipulate to the evidence presented in the trial held earlier the same day. Therefore, it was error for the trial court to take judicial notice of that evidence. Id. at I 6, 584 P.2d at 1350. 2 Bellis did not stipulate to the incorporation of evidence from his trial in CF-2011-3858. Under Linscome, it was error for the district court to take judicial notice of and rely on evidence from a separate trial for the revocation order. DECISION The district court’s revocation order is REVERSED and the matter REMANDED for further proceedings consistent with this opinion. 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 delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE DONALD L. DEASON, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL ROBIN BRUNO PAUL M. CLARK JAMES RADFORD ASST. PUBLIC DEFENDER ASST. PUBLIC DEFENDERS 611 COUNTY OFFICE BLDG. 611 COUNTY OFFICE BLDG. 320 ROBERT S. KERR 320 ROBERT S. KERR OKLAHOMA CITY, OK 73102 OKLAHOMA CITY, OK 73102 ATTORNEY FOR APPELLANT ATTORNEYS FOR DEFENDANT MARCY FASSIO E. SCOTT PRUITT ASSISTANT DISTRICT ATTORNEY OKLAHOMA ATTORNEY GENERAL 320 ROBERT S. KERR, # 505 JUDY KING OKLAHOMA CITY, OK 73102 ASSISTANT ATTORNEY GENERAL ATTORNEY FOR STATE 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 ATTORNEYS FOR APPELLEE 3 OPINION BY: A. JOHNSON, J. LEWIS, P.J.: Concur SMITH, V.P.J.: Concur LUMPKIN, J.: Concur C. JOHNSON, J.: Concur RA 4

Click Here To Download PDF