Timothy Phipps v State Of Oklahoma

F-2003-719

Filed: Apr. 15, 2004

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Timothy Phipps appealed his conviction for Robbery With a Weapon. His conviction and sentence were modified to ten years imprisonment with five years suspended. Judge Strubhar noted that the jury was not properly instructed about the minimum punishment, which influenced their decision. As a result, the sentence was changed. Judges Johnson, Lile, Lumpkin, and Chapel agreed with the decision, but Judge N dissented.

Decision

As Appellant alleges and the State concedes, Appellant's prior Arkansas conviction was improperly used to enhance his sentence in this case. See Collums v. State, 654 P.2d 1070, 1072-73 (Okl.Cr.1982); 21 O.S.2001, § 54. Given that the jury intended Appellant serve the minimum imprisonment they thought possible with an addition five years probation, this Court cannot say that if the jury had been instructed on the proper range of punishment, which, under 21 O.S.2001, § 801, was not less than five years imprisonment, they would not have sentenced him to even less time to do. Accordingly, this error was not harmless and we modify Appellant's sentence. The Judgment of the trial court is AFFIRMED and his Sentence MODIFIED to ten years imprisonment with five years of that sentence suspended.

Issues

• Was Appellant's sentence improperly enhanced with a prior conviction?
• Did the jury receive misinstruction on the minimum punishment?

Findings

• the court erred by improperly enhancing Appellant's sentence with a prior conviction
• the jury was misinstructed on the minimum punishment
• the error was not harmless, necessitating a modification of Appellant's sentence

F-2003-719

Apr. 15, 2004

Timothy Phipps

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, JUDGE: Appellant, Timothy Phipps, was convicted in the District Court of Muskogee County, Case No. CF-2002-324, of Robbery With a Weapon, After Former Conviction of a Felony. The jury trial was held before the Honorable Mike Norman. The jury assessed punishment at ten years imprisonment and recommended an additional five years probation. The trial court sentenced Appellant to fifteen years imprisonment with five suspended. After thorough consideration of the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we affirm Appellant’s conviction but modify the sentence. In reaching our decision, we considered the following proposition of error and determined this result to be required under the law and the evidence:

I. Appellant’s sentence was improperly enhanced with a prior conviction, and the jury was misinstructed on the minimum punishment.

DECISION

As Appellant alleges and the State concedes, Appellant’s prior Arkansas conviction was improperly used to enhance his sentence in this case. See Collums v. State, 654 P.2d 1070, 1072-73 (Okl.Cr.1982); 21 O.S.2001, § 54. Given that the jury intended Appellant serve the minimum imprisonment they thought possible with an addition five years probation, this Court cannot say that if the jury had been instructed on the proper range of punishment, which, under 21 O.S.2001, § 801, was not less than five years imprisonment, they would not have sentenced him to even less time to do. Accordingly, this error was not harmless and we modify Appellant’s sentence. The Judgment of the trial court is AFFIRMED and his Sentence MODIFIED to ten years imprisonment with five years of that sentence suspended.

APPEARANCES AT TRIAL
TIMOTHY KING PETERS
502 COURT STREET
MUSKOGEE, OKLAHOMA 74401
ATTORNEY FOR APPELLANT

LEE ANN JONES
INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OKLAHOMA 73070

JOHN DAVID LUTON
ATTORNEY FOR APPELLANT
220 STATE STREET
MUSKOGEE, OKLAHOMA 74401

W.A. DREW EDMONDSON
ATTORNEY FOR THE STATE
ATTORNEY GENERAL OF OKLAHOMA

JENNIFER B. MILLER
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL BUILDING
OKLAHOMA CITY, OKLAHOMA 73105
ATTORNEYS FOR APPELLEE

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

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Footnotes:

1. Collums v. State, 654 P.2d 1070, 1072-73 (Okl.Cr.1982)
2. 21 O.S.2001, § 54
3. 21 O.S.2001, § 801

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 54 (2001) - Prior felony conviction
• Okla. Stat. tit. 21 § 801 (2001) - Sentencing for robbery

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:

• Collums v. State, 654 P.2d 1070, 1072-73 (Okl.Cr.1982)