Harry Oliver West v State of Oklahoma

F-2005-700

Filed: Jul. 14, 2006

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Harry Oliver West appealed his conviction for Driving While Under the Influence of Alcohol and Driving While License is Canceled/Suspended/Revoked. His conviction and sentence were reversed, and he will get a new trial. Judge C. Johnson dissented.

Decision

The Judgment and Sentence is REVERSED and REMANDED 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 delivery and filing of this decision.

Issues

• Was there a failure to instruct the jury on the definitions of "driving under the influence" and "driving while impaired"?
• Did the trial court's failure to provide these instructions constitute plain reversible error?
• Was the error acknowledged by the State, leading to a recommendation for reversal and a new trial?
• Were the remaining propositions of error rendered moot by the reversal of the conviction?

Findings

• the court erred in failing to instruct the jury on the definitions of "driving under the influence" and "driving while impaired"
• the conviction is reversed and the case is remanded for a new trial
• the remaining propositions of error are moot

F-2005-700

Jul. 14, 2006

Harry Oliver West

Appellant

v

State of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE-PRESIDING JUDGE: Appellant Harry Oliver West was tried by jury and convicted of Driving While Under the Influence of Alcohol (Count I) (47 O.S. 2001, § 11-902(A)(2)) and Driving While License is Canceled/Suspended/Revoked (Count II) (47 O.S. 2001, § 6-303), all counts After Former Conviction of Two or More Felonies, Case No. CF-2003-491 in the District Court of Creek County. The jury recommended as punishment forty-five (45) years imprisonment and a ten thousand dollar ($10,000) fine in Count I, and one year in prison and a five hundred dollar ($500) fine in Count II. The trial court sentenced accordingly, ordering the sentences to be served concurrently. It is from this judgment and sentences that Appellant appeals.

Having thoroughly reviewed Appellant’s propositions of error and the entire record before us on appeal including the original record, transcripts, and briefs of the parties, we have determined that reversal is warranted under Appellant’s first proposition of error. Despite Appellant’s failure to request their inclusion or object to their omission, the trial court’s failure to instruct the jury on the definitions of the terms driving under the influence and driving while impaired was plain reversible error under Slusher v. State, 1991 OK CR 83, IT 5, 814 P.2d 504, 505. The State agrees that error occurred and that the case should be reversed and remanded for a new trial. Therefore, the conviction is reversed and the case remanded for a new trial. This result renders Appellant’s remaining propositions of error moot. See Pinkley U. State, 2002 OK CR 26, II 13, 49 P.3d 756, 760 n. 16.

DECISION

The Judgment and Sentence is REVERSED and REMANDED 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 delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF CREEK COUNTY

THE HONORABLE APRIL SELLERS WHITE, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL

DALE RAY GARDNER
SEVEN S. PARK ST.
P.O. BOX 1077
SAPULPA, OK 74066

COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL

BILL ZUHDI
OKLAHOMA CITY, OK 73101

COUNSEL FOR APPELLANT

MAX COOK
DISTRICT ATTORNEY

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA

CAROL ISKI
ASSISTANT DISTRICT ATTORNEY
CREEK COUNTY COURTHOUSE
222 E. DEWEY
SAPULPA, OK 74066

THEODORE M. PEEPER
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OK 73105

COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, V.P.J.
CHAPEL, P.J.: CONCUR
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR

RC

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Footnotes:

1. Slusher v. State, 1991 OK CR 83, IT 5, 814 P.2d 504, 505.
2. Pinkley U. State, 2002 OK CR 26, II 13, 49 P.3d 756, 760 n. 16.

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-902(A)(2) - Driving While Under the Influence of Alcohol
• Okla. Stat. tit. 47 § 6-303 - Driving While License is Canceled/Suspended/Revoked

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:

• Slusher v. State, 1991 OK CR 83, I 5, 814 P.2d 504, 505
• Pinkley v. State, 2002 OK CR 26, II 13, 49 P.3d 756, 760 n. 16