James Dion Smith v The State Of Oklahoma

F-2008-786

Filed: Feb. 8, 2010

Not for publication

Prevailing Party: James Dion Smith

Summary

James Dion Smith appealed his conviction for Unlawful Possession of a Controlled Drug. The conviction and sentence were reversed by the court. Judge Lumpkin dissented. Smith had entered a no contest plea, and his sentence was delayed for two years. Later, the State tried to speed up his sentence because of a new charge that happened after his original sentence ended. The court agreed with Smith that this was not right because the new charge couldn’t be used to change his sentence. The court decided to dismiss the case and send it back to the lower court. Judge Lumpkin disagreed and felt the court could consider other reasons for sentencing Smith, like his not showing up for a court date.

Decision

The order of acceleration of the Judgment and Sentence in Tulsa County District Court Case No. CF-2003-4739 is hereby REVERSED and this matter is remanded to the District Court with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there an error in the District Court's decision to accelerate Smith's Judgment and Sentence based on an act occurring after the original sentence expired?
• Did the Court properly consider the timeline of events regarding Smith's plea and the subsequent application to accelerate Judgment and Sentence?
• Was the acceleration of Smith's sentence legally justified given that the basis was a new case filed after the deferral period had ended?

Findings

• the court erred
• the order of acceleration was reversed
• the matter is remanded to the District Court with instructions to DISMISS

F-2008-786

Feb. 8, 2010

James Dion Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE CHAPEL, Judge:

Appellant, James Dion Smith, entered a plea of no contest in Tulsa County District Court, Case No. CF-2003-4739, to Unlawful Possession of a Controlled Drug. The District Court deferred imposition of Smith’s Judgment and Sentence for two years, or until July 11, 2006. On February 9, 2005, the State filed an application to accelerate Smith’s Judgment and Sentence. The hearing on the State’s application was held on August 8, 2008, before the Honorable Tom C. Gillert, District Judge. At the conclusion of the hearing, the court accelerated Smith’s Judgment and Sentence. Smith appeals the order of acceleration. In his only assignment of error, Smith asserts the District Court erred in accelerating his Judgment and Sentence based upon an act occurring after his original sentence had expired. 1 See Frazier v. State, 1988 OK CR 78, 793 P.2d 1365.

After a review of the record before this Court, we find merit in Smith’s argument. The record establishes the basis of the District Court’s decision to 1 Smith was charged with Possession of Marijuana in Case No. CF-2008-3882. The alleged act occurred on August 1, 2008. (O.R. 84 – 85) accelerate Smith’s deferred sentence was a new case filed against Smith.2 Because the acceleration of Smith’s sentence was based upon an act committed after the term of his deferred sentence had expired, we must remand this matter to the District Court with instructions to DISMISS.

DECISION

The order of acceleration of the Judgment and Sentence in Tulsa County District Court Case No. CF-2003-4739 is hereby REVERSED and this matter is remanded to the District Court with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), the MANDATE is ORDERED issued upon the filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE TOM C. GILLERT, DISTRICT JUDGE
ATTORNEYS AT TRIAL
RICHARD CLARK
PUBLIC DEFENDER’S OFFICE
TULSA, OKLAHOMA

ATTORNEYS ON APPEAL
CURTIS M. ALLEN
ASSISTANT PUBLIC DEFENDER
TULSA, OKLAHOMA
ATTORNEY FOR APPELLANT

JASON RUSH
KEELEY L. HARRIS
ASSISTANT DISTRICT ATTORNEY
TULSA COUNTY COURTHOUSE
TULSA, OKLAHOMA
OKLAHOMA CITY, OKLAHOMA
ATTORNEY FOR APPELLEE

2 (Tr. of August 8, 2008, hearing on State’s application to accelerate, pp. 4 – 5.)

OPINION BY: CHAPEL, J.

JOHNSON, P.J.: CONCUR

A. JOHNSON, V.P.J.: CONCUR

LUMPKIN, J.: DISSENT

LEWIS, J.: CONCUR

LUMPKIN, JUDGE: DISSENT

I must respectfully dissent due to the fact the Court’s opinion fails to accurately reflect the chronology of events and the action taken by the trial court. The Appellant pled no contest in Tulsa County District Court, Case No. CF-2003-4739, to Unlawful Possession of a Controlled Drug. The Court deferred imposition of the judgment and sentence for a period of two years, or until July 22, 2006. The state filed an Application to Accelerate Judgment on February 9, 2005, and on March 1, 2006, Appellant confessed the state’s application. Therefore, the trial court had the authority to immediately accelerate the sentencing and impose a judgment and sentence on that date. Instead, the trial court decided to continue the imposition of judgment and sentence until September 11, 2006, to give the Appellant one more chance to ameliorate what the court’s decision on sentencing would be. We have previously authorized this type of procedure in State v. Rodriquez, 1976 OK CR 68, 547 P.2d 974, 975, and allowed it even in those cases where the sentencing date occurs after the end of the deferred term.

Because the Appellant failed to appear on September 11, 2006, a bench warrant was issued and the sentencing hearing finally held on August 8, 2008. While I agree that a decision to revoke or accelerate cannot be based on violations occurring after the term of suspension or deferral has expired, that is not exactly what happened in this case. The Appellant confessed the violation of the terms and conditions of probation. The trial court was authorized to enter judgment and sentence the Appellant on the date of that confessed violation. Instead, the court put off that decision until September 11, 2006, when the Appellant failed to appear and a bench warrant had to be issued. While the trial court could not consider the new charges filed after the expiration of the time of probation, it could consider the failure to appear. Instead of reversing and dismissing the case, in disregard of the fact Appellant confessed a violation of his deferred sentence, the Court should remand the case for resentencing based only on the evidence which was proper to consider.

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Footnotes:

1. Frazier v. State, 1988 OK CR 78, 793 P.2d 1365.
2. Tr. of August 8, 2008, hearing on State's application to accelerate, pp. 4 - 5.
3. State v. Rodriquez, 1976 OK CR 68, 547 P.2d 974, 975.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Unlawful Possession of a Controlled Drug
• Okla. Stat. tit. 22 § 18 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 14 - Acceleration of Judgment
• Okla. Stat. tit. 21 § 45 - Violations of terms and conditions of probation
• Okla. Stat. tit. 21 § 1030 - Failure to appear

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:

• Frazier v. State, 1988 OK CR 78, 793 P.2d 1365
• State v. Rodriquez, 1976 OK CR 68, 547 P.2d 974