Bobby Ray Lewis v The State Of Oklahoma

C-2018-861

Filed: Jun. 16, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Bobby Ray Lewis appealed his conviction for Driving Under the Influence and other charges. The court dismissed the conviction and sentence because he did not file his appeal in time. Judge Rowland dissented.

Decision

Petitioner's Petition For Writ of Certiorari is not properly before the Court and is hereby DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the Petitioner's Petition For Writ of Certiorari properly before the Court?
• Did the Petitioner fail to file a motion to withdraw his plea within the required ten days after the pronouncement of judgment and sentence?
• Did the District Court lose jurisdiction to enter an order denying the Petitioner's untimely motion to withdraw?

Findings

• Petitioner's Petition For Writ of Certiorari is dismissed because it is not properly before the Court.

C-2018-861

Jun. 16, 2019

Bobby Ray Lewis

Appellant

v

The State Of Oklahoma

Appellee

OPINION DENYING CERTIORARI

JOHN D. HADDEN LUMPKIN, JUDGE:

Petitioner, Bobby Ray Lewis, was charged by Information in District Court of Okfuskee County Case No. CF-2017-17 with Driving Under the Influence (Count 1) (47 O.S.Supp.2016, § 11-902), Leaving the Scene of an Accident with Injury (Count 2) (47 O.S.2011, § 10-102), and Failure to Report a Personal Injury Accident (Misdemeanor) (Count 3) (47 O.S.2011, § 10-107). In District Court of Okfuskee County Case No. CF-2018-21, Petitioner was charged with Assault and Battery on a Police Officer (Counts 1 & 2) (21 O.S.Supp.2015, § 649) and Assault and Battery on an Emergency Medical Care Provider (Count 3) (21 O.S.2011, 650.4).

I. Petitioner is entitled to withdraw his pleas because the pleas were not knowingly and voluntarily entered. However, we do not reach the merits of this claim. Instead, we find that this appeal should be dismissed.

Procedural Status of Appeal

It is apparent from the face of the record that Petitioner’s Petition For Writ of Certiorari is not properly before the Court. Appeals of a judgment following a plea are to be taken by means of a petition for writ of certiorari. Burnham U. State, 2002 OK CR 6, I 6, 43 P.3d 387, 389; 22 O.S.2011, § 1051. Rule 4.2(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019) provides that to appeal from any conviction on a plea of guilty or nolo contendere, the defendant must have filed in the trial court clerk’s office an application to withdraw the plea within ten (10) days from the date of the pronouncement of the Judgment and Sentence. In Scott U. State, 1987 OK CR 52, II 8-9, 734 P.2d 326, 328, this Court determined that the defendant’s conviction became final when he failed to file the requisite motion to withdraw his guilty plea within ten days from the date of the pronouncement of the judgment and sentence. See also Fleming U. Evans, 481 F.3d 1249, 1255 (10th Cir. 2007) (recognizing that conviction becomes final under Oklahoma law when defendant fails to timely file motion to withdraw guilty plea).

In the present case, the District Court orally pronounced judgment and sentence on Petitioner in both cases on June 27, 2018. Petitioner did not file a motion to withdraw his plea within ten days of this date. When this occurred, Petitioner’s conviction became final by operation of law and the trial court lost jurisdiction over the case outside of a motion for new trial (22 O.S.2011, § 952), properly filed application for post-conviction relief (22 O.S.2011, § 1080), or request for sentence modification (22 D.S.Supp.2018, § 982a). When Petitioner filed his Motion to Withdraw on July 17, 2018 twenty days had passed since the District Court’s oral pronouncement of judgment and sentence. Therefore, the District Court did not have jurisdiction to enter the order denying Petitioner’s untimely motion to withdraw. Accordingly, this appeal is dismissed.

DECISION

Petitioner’s Petition For Writ of Certiorari is not properly before the Court and is hereby DISMISSED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKFUSKEE COUNTY

THE HONORABLE LAWRENCE W. PARISH, DISTRICT JUDGE

APPEARANCES AT TRIAL

CURT ALLEN INDIGENT DEFENSE SYSTEM
P.O. BOX 998 COUNSEL FOR DEFENDANT
OKMULGEE, OK 74447 AT PLEA

ARLAN BULLARD ATTORNEY AT LAW
110 N. WILLOW STREET, STE B
PAULS VALLEY, OK 73075 COUNSEL FOR DEFENDANT
AT WITHDRAW HEARING

EMILY MUELLER ASSISTANT DISTRICT ATTORNEY
P.O. BOX 225 COUNSEL FOR THE STATE
OKEMAH, OK 74859

OPINION BY: LUMPKIN, J.

LEWIS, P.J.: Concur
KUEHN, V.P.J.: Concur
HUDSON, J.: Concur
ROWLAND, J.: Concur

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Footnotes:

1. 47 O.S.Supp.2016, § 11-902
2. 47 O.S.2011, § 10-102
3. 47 O.S.2011, § 10-107
4. 21 O.S.Supp.2015, § 649
5. 21 O.S.2011, § 650.4
6. Burnham v. State, 2002 OK CR 6, ¶ 6, 43 P.3d 387, 389
7. 22 O.S.2011, § 1051
8. Scott v. State, 1987 OK CR 52, ¶ 8-9, 734 P.2d 326, 328
9. Fleming v. Evans, 481 F.3d 1249, 1255 (10th Cir. 2007)
10. 22 O.S.2011, § 952
11. 22 O.S.2011, § 1080
12. 22 O.S.Supp.2018, § 982a

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902 (2016) - Driving Under the Influence
• Okla. Stat. tit. 47 § 10-102 (2011) - Leaving the Scene of an Accident with Injury
• Okla. Stat. tit. 47 § 10-107 (2011) - Failure to Report a Personal Injury Accident
• Okla. Stat. tit. 21 § 649 (2015) - Assault and Battery on a Police Officer
• Okla. Stat. tit. 21 § 650.4 (2011) - Assault and Battery on an Emergency Medical Care Provider
• Okla. Stat. tit. 22 § 1051 (2011) - Appeal Procedure Following Guilty Plea
• Okla. Stat. tit. 22 § 952 (2011) - Jurisdiction and Motion for New Trial
• Okla. Stat. tit. 22 § 1080 (2011) - Post-Conviction Relief
• Okla. Stat. tit. 22 § 982a (2018) - Request for Sentence Modification

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:

• Burnham v. State, 2002 OK CR 6, I 6, 43 P.3d 387, 389
• Scott v. State, 1987 OK CR 52, II 8-9, 734 P.2d 326, 328
• Fleming v. Evans, 481 F.3d 1249, 1255 (10th Cir. 2007)