Bruce Hampton v State Of Oklahoma

F-2000-1062

Filed: Feb. 1, 2000

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Bruce Hampton appealed his conviction for trafficking in cocaine base. His conviction and sentence were for fifty years imprisonment and a $100,000 fine for Count 1, fifty years imprisonment for Count 2, and thirty days in jail for Count 3. The judges agreed with most of the trial court's decisions but decided that the fine for Count 1 was too high and changed it to $10,000. Judge Johnson dissented.

Decision

The Judgment and Sentence of the trial court on Counts 2 and 3 is AFFIRMED. The Judgment of the trial court on Count 1 is AFFIRMED, but the fine on Count 1 is hereby MODIFIED to $10,000.00.

Issues

• Was the fine on Count One illegal and subject to modification?
• Did the trial court err in instructing the jury on the permissible fine for Count One?
• Does the proper fine provision for Count One limit the fine to no more than $10,000.00?
• Is the Judgment and Sentence of the trial court on Counts 2 and 3 affirmed?

Findings

• the court erred in modifying the fine on Count 1
• the Judgment and Sentence of the trial court on Counts 2 and 3 is affirmed
• the Judgment of the trial court on Count 1 is affirmed, but the fine on Count 1 is modified to $10,000.00

F-2000-1062

Feb. 1, 2000

Bruce Hampton

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, PRESIDING JUDGE: Bruce Hampton, hereinafter Appellant, was convicted of one count of Trafficking in Cocaine Base, After Former Conviction of Two or More Felonies (63 O.S.Supp.1993, § 2-415) (Count 1), one count of Failure to Affix a Tax Stamp, After Former Conviction of Two or More Felonies (68 O.S. 1991, § 450.8) (Count 2) and one count of Public Intoxication (37 O.S.1991, § 8) (Count 3), following a jury trial in the District Court of Osage County, Case No. CF-97-34, the Honorable William H. Mattingly, Associate District Judge, presiding. The jury recommended fifty (50) years imprisonment and a $100,000.00 fine on Count 1, fifty (50) years imprisonment on Count 2 and thirty (30) days in the county jail on Count 3. The trial court sentenced Appellant accordingly and ordered the sentences to be served consecutively. From this Judgment and Sentence, Appellant appeals. The following proposition of error was considered:

I. Appellant’s fine on Count One is illegal and should be modified.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we find the fine on Count 1 must be modified. The State sought to enhance Appellant’s sentence pursuant to the second and subsequent offense statute, 21 O.S.1991, § 51(B), alleging ten prior non-drug related felonies. Appellant correctly asserts, and the State concedes, that the trial court correctly instructed the jury on the range of punishment, but erred in instructing the jury on the permissible fine. The trial court’s instruction (O.R. 143-44) combined the range of punishment from the second and subsequent offense statute in section 51 with the fine provision provided in the Trafficking in Illegal Drugs Act, 63 O.S. Supp. 1993, § 2-415 (C)(7)(b). This was error. Gaines v. State, 568 P.2d 1290, 1294 (Okl.Cr.1977). See also Novey U. State, 709 P.2d 696, 699-700 (Okl.Cr.1985). The proper fine provision is found in 21 O.S.Supp.1993, § 64 and provides for a fine of not more than $10,000.00. Under our authority to modify the fine, 22 O.S.1991, § 1066, we find the fine should be modified to $10,000.00 on Count 1.

DECISION

The Judgment and Sentence of the trial court on Counts 2 and 3 is AFFIRMED. The Judgment of the trial court on Count 1 is AFFIRMED, but the fine on Count 1 is hereby MODIFIED to $10,000.00.

APPEARANCES AT TRIAL

DANIEL E. JAMES
ATTORNEY AT LAW
2601 N.W. EXPRESSWAY
STE. 201W
OKLAHOMA CITY, OK 73112
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
DIANE L. SLAYTON
ASSISTANT ATTORNEY GENERAL
2300 N. LINCOLN BLVD., SUITE 112
OKLAHOMA CITY, OK 73104
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, P.J.
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
CHAPEL, J.: CONCUR
LILE, J.: CONCUR

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Footnotes:

1. 63 O.S.Supp.1993, § 2-415
2. 68 O.S. 1991, § 450.8
3. 37 O.S.1991, § 8
4. 21 O.S.1991, § 51(B)
5. 21 O.S.Supp.1993, § 64
6. 22 O.S.1991, § 1066
7. Gaines v. State, 568 P.2d 1290, 1294 (Okl.Cr.1977)
8. Novey U. State, 709 P.2d 696, 699-700 (Okl.Cr.1985)

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (1993) - Trafficking in Cocaine Base
• Okla. Stat. tit. 68 § 450.8 (1991) - Failure to Affix a Tax Stamp
• Okla. Stat. tit. 37 § 8 (1991) - Public Intoxication
• Okla. Stat. tit. 21 § 51(B) (1991) - Second and Subsequent Offense
• Okla. Stat. tit. 21 § 64 (1993) - Fine Provision
• Okla. Stat. tit. 22 § 1066 (1991) - Authority to Modify Fine

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:

• Gaines v. State, 568 P.2d 1290, 1294 (Okl.Cr.1977)
• Novey v. State, 709 P.2d 696, 699-700 (Okl.Cr.1985)