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FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA MAR – 6 2003 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA MICHAEL S. RICHIE CLERK GARY DON CAUDILL, ) NOT FOR PUBLICATION ) Appellant, ) ) V. ) Case No. F-2002-708 ) THE STATE OF OKLAHOMA, ) ) Appellee. ) SUMMARY OPINION PER CURIAM: Appellant, Gary Don Caudill, was tried by jury in Stephens County District Court Case No. CF-2001-263 for Robbery with a Dangerous Weapon (21 O.S.2001, § 801). Jury trial was held April 16 and 17, 2002 before the Honorable George W. Lindley, District Judge. The jury found Appellant guilty as charged and recommended a sentence of eighteen years imprisonment. At sentencing, the State presented evidence in aggravation of sentence and asked the court to sentence Appellant to a term of imprisonment greater than the jury had recommended. The district court imposed a thirty-five-year sentence and a $2000 fine. Formal sentencing was held May 20, 2002. Appellant timely lodged this appeal. In his sole assignment of error, Appellant, relying on Malone v. State, 2002 OK CR 34, 58 P.3d 208 (Opinion on Rehearing), contends that the district court lacked authority to sentence him to a term of imprisonment greater than that recommended by the jury. We agree. The State’s presentation of evidence in aggravation of sentence, and the district court’s decision to increase the term of imprisonment, were based on a prior, non-final opinion in Malone, which was eventually withdrawn and superseded on rehearing. The State concedes that error occurred. Appellant’s sentence is therefore MODIFIED to a term of eighteen years imprisonment and a $2000 fine. See Luker v. State, 1976 OK CR 135, I 12, 552 P.2d 715, 719; 21 O.S. § 64(B); Fite V. State, 1993 OK CR 58, I 11, 873 P.2d 293, 295. DECISION The judgment of the district court is AFFIRMED, but the sentence is MODIFIED to eighteen years imprisonment and a $2000 fine. AN APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY THE HONORABLE GEORGE W. LINDLEY, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL JAMES W. BERRY LEE ANN JONES PETERS INDIGENT DEFENSE SYSTEM INDIGENT DEFENSE SYSTEM 100 N. BROADWAY, SUITE 2850 1623 CROSS CENTER DRIVE OKLAHOMA CITY, OK 73102 NORMAN, OK 73019 ATTORNEY FOR DEFENDANT ATTORNEY FOR APPELLANT JERRY HERBERGER W. A. DREW EDMONDSON ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKLAHOMA STEPHENS COUNTY COURTHOUSE KELLYE BATES DUNCAN, OK 73533 ASSISTANT ATTORNEY GENERAL ATTORNEY FOR THE STATE 112 STATE CAPITOL OKLAHOMA CITY, OK 73105 ATTORNEYS FOR THE STATE OPINION BY: PER CURIAM JOHNSON, P.J.: CONCURS BY STARE DECISIS LILE, V.P.J.: CONCURS LUMPKIN, J.: CONCURS CHAPEL, J.: CONCURS STRUBHAR, J.: CONCURS RA 2

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