Franklin Lee Gibbs, Jr. v State Of Oklahoma
F-2004-649
Filed: Mar. 9, 2006
Not for publication
Prevailing Party: State Of Oklahoma
Summary
Franklin Lee Gibbs, Jr. appealed his conviction for first-degree murder and felon in possession of a firearm. His conviction and sentence were for life imprisonment without parole for murder and 50 years imprisonment for the firearm charge, served together. Judge A. Johnson dissented. The court found that Gibbs was not given enough chances to pick jurors (only five instead of nine), which is a mistake that led to a new trial. The court agreed with Gibbs that his past convictions should not have been used to increase his murder charge, stating that it would be unreasonable to allow this. Gibbs's murder charge will be retried without using his prior convictions, but those convictions can still be used to address the firearm charge. The court reversed the original judgment and sent the case back for a new trial.
Decision
The Judgment of the district court is REVERSED and this matter is REMANDED to the district court for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was there a denial of due process due to the trial court's award of only five peremptory challenges during jury selection in the first-degree murder trial?
- Did the trial court err by allowing the prosecutor to use the appellant's three prior convictions to enhance the first-degree murder charge?
- Could the inclusion of the appellant's prior convictions in the title of the first-degree murder verdict form be considered as evidence to enhance his sentence?
- Was it permissible for the State to enhance a non-capital first-degree murder conviction with the defendant's prior convictions?
Findings
- the court erred in limiting peremptory challenges to five instead of nine
- the inclusion of prior convictions in the murder verdict form was improper as it acted as improper sentencing enhancement
- on retrial, prior convictions may only be used to enhance the felon in possession charge, not the first-degree murder charge
- the judgment of the district court is reversed and the case is remanded for a new trial
F-2004-649
Mar. 9, 2006
Franklin Lee Gibbs, Jr.
Appellantv
State Of Oklahoma
Appellee
v
State Of Oklahoma
Appellee
SUMMARY OPINION
A. JOHNSON, J.: Franklin Lee Gibbs, Jr., Appellant, was tried by jury in the District Court of Pittsburg County, Case No. F-2004-29, and convicted of Count I, First-Degree Murder in violation of 21 O.S.2001, § 701.7(A) and Count II, Felon in Possession of a Firearm, After Former Conviction of Two Felonies in violation of 21 O.S.Supp.2002, § 1283. The jury fixed Gibbs’s punishment at life imprisonment without the possibility of parole on Count I and 50 years imprisonment on Count II. The trial court sentenced him accordingly and ordered the sentences to run concurrently. From this Judgment and Sentence, Gibbs appeals. We reverse.
A recitation of the facts is not necessary as this case must be reversed and remanded for a new trial because of an error in jury selection. Gibbs argues in his second proposition that the trial court’s award of only five peremptory challenges during jury selection in his first degree murder trial denied him due process.1 We recently addressed this identical claim and held that the denial of the full complement of statutorily prescribed peremptory challenges in a first degree murder case is reversible error. Golden v. State, 2006 OK CR 2, I 19, 127 P.3d 1150. Golden is dispositive. Because Gibbs was only given five peremptory challenges instead of nine, his case must be reversed for a new trial.
We also address Proposition III to avoid any error on retrial. Gibbs asserts that the trial court erred when it allowed the prosecutor to use his three prior convictions to enhance his first-degree murder charge. The record shows that the State filed a second page and sought to enhance Gibbs’s sentence on his felon in possession charge (Count 2) with two of his three prior felony convictions.2 Gibbs’s three prior felony convictions were also included in the title of the first-degree murder verdict form, which read, MURDER, FIRST DEGREE AFTER THREE PREVIOUS CONVICTIONS. Gibbs contends the inclusion of his three prior convictions in the first-degree murder verdict form’s title acted as evidence to enhance his sentence from life with the possibility of parole to life without the possibility of parole. Gibbs objected to the verdict form on this basis at trial.
It is obvious that the State cannot enhance a non-capital first-degree murder conviction with a defendant’s prior convictions. The punishment1 range for persons who have been twice convicted of felony offenses, and who subsequently commit an enumerated offense in 57 O.S.2001, § 571 within ten (10) years of the previous convictions, is twenty (20) years to life imprisonment. 21 O.S.2001, § 51.1(B). Punishment for first-degree murder is death, life imprisonment without parole, or life imprisonment. 21 O.S.2001, § 701.9(A). Although first degree murder is an enumerated offense in § 571 and thus a crime potentially subject to enhancement, permitting enhancement would allow habitual offenders to receive a punishment range less than that prescribed for first time offenders charged with first-degree murder. Such a construction is unreasonable. Rules of statutory construction require us to ascertain and give effect to the intention of the Legislature as expressed in the statute. State v. Anderson, 1998 OK CR 67, I 3, 972 P.2d 32, 33 (citing Thomas v. State, 1965 OK CR 70, 7 4, 404 P.2d 71, 73). We look to each part of the [statute], to other statutes upon the same or relative subjects, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation. Thomas, 1965 OK CR 70, I 4, 404 P.2d at 73. Allowing enhancement of a first-degree murder sentence yields absurd consequences and cannot be permitted. It was error to include Gibbs’s prior convictions in the title of the first-degree murder verdict form as Gibbs’s murder charge could not be enhanced.2 One of Gibbs’s prior convictions was used as an element of the felon in possession charge and could not be used to then enhance his sentence.3 On retrial, Gibbs’s prior convictions may be used only to enhance his felon in possession charge and not his first degree murder charge.
DECISION
The Judgment of the district court is REVERSED and this matter is REMANDED to the district court for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Footnotes:
- Okla. Stat. tit. 22 § 655
- Okla. Stat. tit. 57 § 571
- Okla. Stat. tit. 21 § 51.1(B)
- Okla. Stat. tit. 21 § 701.9(A)
- State v. Anderson, 1998 OK CR 67, I 3, 972 P.2d 32, 33
- Thomas v. State, 1965 OK CR 70, I 4, 404 P.2d 71, 73
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 701.7(A) (2001) - First-Degree Murder
- Okla. Stat. tit. 21 § 1283 (Supp. 2002) - Felon in Possession of a Firearm
- Okla. Stat. tit. 22 § 655 (2001) - Peremptory Challenges in First-Degree Murder Cases
- Okla. Stat. tit. 57 § 571 (2001) - Punishment Range for Habitual Offenders
- Okla. Stat. tit. 21 § 51.1(B) (2001) - Punishment for Non-Capital Offenses
- Okla. Stat. tit. 21 § 701.9(A) (2001) - Punishment for First-Degree Murder
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:
- Golden v. State, 2006 OK CR 2, I 19, 127 P.3d 1150
- State v. Anderson, 1998 OK CR 67, I 3, 972 P.2d 32
- Thomas v. State, 1965 OK CR 70, I 4, 404 P.2d 71
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