Guy Franklin Randell v State Of Oklahoma

F-2001-934

Filed: Jun. 25, 2002

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Guy Franklin Randall appealed his conviction for Lewd Molestation. His conviction and sentence were for twenty years in prison, with five years suspended and a $1,000 fine. Judge Lile dissented.

Decision

The Judgment of the trial court is AFFIRMED. The Sheriff's Fees are VACATED and the matter is remanded for an evidentiary hearing, where the Sheriff's Fees can be calculated in accordance with the applicable statute.

Issues

• was the hearsay testimony of the prosecutrix inconsistent, contradictory, and unbelievable, and was the corroboration of the testimony insufficient as a matter of law?
• did the trial court err by imposing incarceration costs without a request from the district attorney and a hearing?
• is Mr. Randell's sentence excessive and should it be modified?

Findings

• the court did not err regarding the hearsay testimony, as it was sufficiently corroborated
• the trial court erred by imposing Sheriff's Fees without proper evidence or itemization
• Appellant's sentence is not excessive and falls within statutory limits

F-2001-934

Jun. 25, 2002

Guy Franklin Randell

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Guy Franklin Randall, Appellant, was tried in a bench trial and convicted of one count of Lewd Molestation in the District Court of Stephens County, Case No. CF-00-243, District Judge George W. Lindley presiding. The trial court sentenced Appellant to twenty years imprisonment with five years suspended plus a $1,000.00 fine, costs and fees. From this judgment and sentence, Appellant appeals. 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 but remand the matter for the reasons discussed below.

We have reviewed the following propositions of error:

I. The testimony of the hearsay statements of prosecutrix was inconsistent, contradictory, and unbelievable, and the corroboration of the testimony was insufficient as a matter of law;

II. The trial court erred by imposing incarceration costs;

III. Mr. Randell’s sentence is excessive and should be modified.

As to Proposition I, we find that even though there was some conflict and confusion, S.R.’s hearsay statements detailing the specific acts were not so impeached or incredible as to require corroboration. Because these statements were not so incredible or impeached, were somewhat corroborated by her brother and supplied sufficient evidence to meet the Spuehler standard, no relief is warranted.

As to Proposition III, we find Appellant’s sentence is within the statutory limit and is not shockingly excessive in this case. Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001).

As to Proposition II, Appellant complains the trial court imposed incarceration fees through the Sheriff’s Fees portion of his Judgment & Sentence without a request from the district attorney and a hearing in violation of 22 O.S.Supp. 1999, § 979a. The Judgment and Sentence provides that Appellant pay a $1,000.00 fine, court costs totaling $974.55, a 25.00 Victim’s Compensation Assessment and the above Sheriff’s Fees plus all accruing sheriff fees and transcript fees. The State argues this claim is premature and that the statute was essentially complied with. A district court has jurisdiction to assess certain costs of prosecution on a convicted defendant. 28 O.S.1991, § 101. Hubbard v. State, 2002 OK CR 8, 6, P.3d ___.

Title 22 O.S.Supp. 1999, § 979a (A) extends the costs that may be recouped to include the costs of detention in a city or county jail. Id. Costs of incarceration include booking, receiving and processing out, housing, food, clothing, medical care, dental care, and psychiatric services. 22 O.S.Supp.1999, § 979a (A). In Hubbard, we vacated the amount of incarceration fees imposed because the record did not establish how the fee was calculated.

At sentencing, there was no mention of costs and fees. The Assistant District Attorney [hereinafter ADA] asked at the conclusion of the hearing about an Exhibit K. The trial court advised the ADA that it always assumes an Exhibit K is on file. According to the State, an Exhibit K is an exhibit which demonstrates the actual costs of incarceration and the defendant is required to sign the exhibit at the sentencing hearing. This Court on its own motion ordered the Exhibit K filed in the District Court of Stephens County be made a part of this Court’s record for review.

Two Exhibit K’s were filed and supplemented. The first Exhibit K shows Appellant spent 281 days in the Stephens County jail and was charged $12 per day. He was also assessed $1085.08 in medical expenses. It is signed by Appellant, his lawyer, the ADA and the sheriff. The second and presumably amended Exhibit K only charged Appellant for 247 days and medical expenses totaling $867.06. However, the second Exhibit K is not signed by anyone except the sheriff.

Returning to Appellant’s claim, the ADA’s inquiry concerning an Exhibit K at sentencing plus the signed exhibit shows an adequate request on the part of the district attorney for incarceration fees. The exhibit also shows how the daily fee was calculated. However, there was no evidence of how the $12.00 per day cost was arrived at or any itemization for medical expenses. Therefore, we find the Sheriff’s fee should be vacated and the matter remanded to the district court for an evidentiary hearing, where the basis for the Sheriff’s fee can be ascertained. Any hardship complaint can be litigated after the defendant’s release and the costs are actually due and owing which is what Exhibit K provides.

DECISION

The Judgment of the trial court is AFFIRMED. The Sheriff’s Fees are VACATED and the matter is remanded for an evidentiary hearing, where the Sheriff’s Fees can be calculated in accordance with the applicable statute.

APPEARANCES AT TRIAL

DON J. GUTTERIDGE
ATTORNEY AT LAW
P.O. BOX 13070
OKLAHOMA CITY, OK 73113
ATTORNEY FOR APPELLANT

JERRY HERBERGER
ASST. DISTRICT ATTORNEY
STEPHENS CO. COURTHOUSE
DUNCAN, OK 73533
ATTORNEY FOR THE STATE

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Footnotes:

1. Appellant was acquitted of one count of rape by instrumentation.
2. Spuehler U. State, 709 P.2d 202, 203-04 (Okl.Cr. 1985).
3. 28 O.S.1991, § 101.
4. Title 22 O.S.Supp. 1999, § 979a (A).
5. Hubbard U. State, 2002 OK CR 8, 6,__P.3d___.
6. Id. at "I 8.
7. Id. at 10.
8. (O.R. 48)

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 979a (1999) - Costs of Incarceration
• Okla. Stat. tit. 28 § 101 (1991) - Costs of Prosecution

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:

• Rea v. State, 34 P.3d 148, 149 (Okl.Cr.2001)
• Hubbard v. State, 2002 OK CR 8, 6,__P.3d___
• Cape v. State, 2002 OK CR 8, I 9, P.3d
• Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr. 1985)