Charles Earl Smith, Jr. v The State Of Oklahoma

F 2000-599

Filed: Apr. 13, 2001

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Charles Earl Smith, Jr. appealed his conviction for omitting to provide for a minor child. His conviction and sentence were to three years in prison, a $1,000 fine, and he was ordered to pay $10,247 in restitution. Judge Lindley was in charge of the case. The court agreed that the restitution amount needed to be changed because there were mistakes in how it was calculated. After reviewing everything, they decided to keep the conviction but modified the restitution amount to $10,035.25. Judge Lumpkin, Judge Chapel, Judge Strubhar, and Judge Lile all agreed with this decision.

Decision

The Judgment and Sentence is hereby AFFIRMED, but the order of restitution is hereby MODIFIED to $10,035.25.

Issues

• was there a denial of due process of law due to the imposition of $10,247.00 in restitution?
• did the trial court have the authority to impose restitution?
• should the restitution amount be modified from $10,247.00 to $10,035.25?

Findings

• The court affirmed the conviction and sentence.
• The order of restitution was modified to $10,035.25.

F 2000-599

Apr. 13, 2001

Charles Earl Smith, Jr.

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, VICE PRESIDING JUDGE: Appellant, Charles Earl Smith, Jr., was charged in Stephens County District Court, Case No. CF 98-249, with Omitting to Provide for Minor Child, in violation of 21 O.S.1991, § 852(A). Appellant was found guilty after a non-jury trial held before the Honorable George W. Lindley, District Judge, on May 8, 2000. Judgment and Sentence was imposed on April 19, 2000, and Judge Lindley sentenced Appellant to three years imprisonment, assessed a $1,000.00 fine, and ordered Appellant to pay $10,247.00 in restitution. From the Judgment and Sentence imposed, Appellant filed this appeal.

In his sole proposition of error, Appellant argues the imposition of $10,247.00 in restitution served to deny Mr. Smith of due process of law and accordingly requires modification. After thorough consideration of the proposition raised and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined that Appellant’s conviction and sentence should be affirmed, but the order of restitution modified.

The State concedes the restitution ordered by the trial court was erroneous and warrants slight modification. We believe the trial court acted well within its power in imposing restitution. The record clearly shows the total amount due was $10,973.88. Appellant made payments of $419.76, 209.88, 100.00, and an unknown amount. In determining the applicable amount of restitution, the unknown amount paid in February 2000 must be taken into consideration. Accordingly, we find the restitution order should be modified to $10,035.25. See Honeycutt v. State, 1992 OK CR 36, 11 31-34, 834 P.2d 993, 1000.

DECISION

The Judgment and Sentence is hereby AFFIRMED, but the order of restitution is hereby MODIFIED to $10,035.25.

APPEARANCES AT TRIAL
JAMES W. BERRY
O.I.D.S. APPELLATE DEFENSE COUNSEL
100 N. BROADWAY, SUITE 2850
OKLAHOMA CITY, OK 73105
ATTORNEY FOR DEFENDANT

SUE TAYLOR
ASSISTANT DISTRICT ATTORNEY
STEPHENS COUNTY COURTHOUSE
DUNCAN, OKLAHOMA 73533
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL
KATHERINE JANE ALLEN
1623 CROSS CENTER DRIVE
NORMAN, OKLAHOMA 73019
ATTORNEY FOR APPELLANT

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
SANDRA D. HOWARD
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73104
ATTORNEYS FOR APPELLEE

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

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Footnotes:

1. 21 O.S.1991, § 852(A)
2. Honeycutt v. State, 1992 OK CR 36, 11 31-34, 834 P.2d 993, 1000

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 852(A) - Omitting to Provide for Minor Child (1991)
• Okla. Stat. tit. 21 § 701.8 - Restitution (2011)

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:

• Honeycutt v. State, 1992 OK CR 36, I 31-34, 834 P.2d 993, 1000