Mitchell Lawrence Rose v State Of Oklahoma

F-2000-821

Filed: Jul. 1, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Mitchell Lawrence Rose appealed his conviction for Solicitation of First Degree Murder. His conviction and sentence were for twenty-seven years in prison. Judge Lile dissented.

Decision

The Judgment of the trial court is AFFIRMED, the sentence is VACATED and the case is REMANDED for resentencing.

Issues

• Was there error in allowing the State to admit evidence of the alleged robbery of a mail truck?
• Did the trial court err by imposing judgment and sentence without first ordering the preparation of a pre-sentence investigation report?

Findings

• the trial court erred in admitting evidence of Appellant's alleged robbery of a mail truck
• the error was harmless beyond a reasonable doubt and did not contribute to the verdict or sentence
• the trial court erred by failing to comply with the mandatory provisions concerning pre-sentence investigation reports
• the sentence is vacated and the case is remanded for resentencing

F-2000-821

Jul. 1, 2001

Mitchell Lawrence Rose

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Mitchell Lawrence Rose, Appellant, was convicted of one count of Solicitation of First Degree Murder (21 O.S.Supp.1999, $701.16), following a jury trial in the District Court of Cleveland County, Case No. CF-99-1965, District Judge Tom A. Lucas presiding. The trial court imposed sentence in accordance with the jury’s recommendation of twenty-seven (27) years imprisonment and ordered Appellant to pay court costs and a $50.00 Victim’s Compensation Assessment. From this judgment and sentence, he appeals. The following propositions of error were considered:

I. Because evidence relating to the alleged robbery of a mail truck was irrelevant and highly prejudicial, the trial court erred in allowing the State to admit evidence of it; and

II. The trial court erred by imposing judgment and sentence without first ordering the preparation of a pre-sentence investigation report.

After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm the judgment, vacate the sentence and remand this matter for resentencing. As to Proposition I, we find the trial court erred in admitting evidence of Appellant’s alleged robbery of a mail truck. Burks v. State, 594 P.2d 771, 772 (1979) overruled on other grounds by, Jones v. State, 772 P.2d 922 (1989). However, as the evidence of Appellant’s guilt was overwhelming, we find this error was harmless beyond a reasonable doubt and did not contribute to the verdict or sentence. Knighton v. State, 912 P.2d 878, 889 (Okl.Cr.1996) cert. denied, 519 U.S. 841, 117 S. Ct. 120, 136 L. Ed. 2d 71 (1996). As to Proposition II, we find the trial court’s failure to comply with the mandatory provisions of 22 S.Supp. 1997, $982 concerning pre-sentence investigation reports was error that requires us to vacate the sentence and remand this matter for resentencing. Owens v. State, 747 P.2d 959, 961 (Okl.Cr.1987); Smith v. State, 594 P.2d 784, 787 (Okl.Cr.1979).

DECISION

The Judgment of the trial court is AFFIRMED, the sentence is VACATED and the case is REMANDED for resentencing.

APPEARANCES AT TRIAL
DOUGLAS J. SMITH
ATTORNEY AT LAW
104 EAST EUFAULA
NORMAN, OK 73069
ATTORNEY FOR DEFENDANT

APPEARANCES ON APPEAL
MARK P. HOOVER
APPELLATE DEFENSE COUNSEL
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

TRACY SCHUMACHER
ASSISTANT DISTRICT ATTORNEY
CLEVELAND COUNTY D.A.’S OFC.
NORMAN, OK 73069
ATTORNEY FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

STEVEN E. LOHR
ASSISTANT ATTORNEY GENERAL
2300 N.LINCOLN BLVD., SUITE112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.

LUMPKIN, P.J.: CONCUR IN RESULT

JOHNSON, V.P.J.: CONCUR

CHAPEL, J.: CONCUR

LILE, J.: DISSENT

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Footnotes:

1. 21 O.S.Supp. 1999 § 701.16
2. Burks v. State, 594 P.2d 771, 772 (1979) overruled on other grounds by, Jones v. State, 772 P.2d 922 (1989)
3. Knighton v. State, 912 P.2d 878, 889 (Okl.Cr.1996) cert. denied, 519 U.S. 841, 117 S. Ct. 120, 136 L. Ed. 2d 71 (1996)
4. 22 S.Supp. 1997 § 982
5. Owens v. State, 747 P.2d 959, 961 (Okl.Cr.1987)
6. Smith v. State, 594 P.2d 784, 787 (Okl.Cr.1979)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.16 (1999) - Solicitation of First Degree Murder
• Okla. Stat. tit. 22 § 982 (1997) - Pre-sentence Investigation Reports

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:

• Burks v. State, 594 P.2d 771, 772 (1979)
• Jones v. State, 772 P.2d 922 (1989)
• Knighton v. State, 912 P.2d 878, 889 (Okl.Cr.1996)
• Owens v. State, 747 P.2d 959, 961 (Okl.Cr.1987)
• Smith v. State, 594 P.2d 784, 787 (Okl.Cr.1979)