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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JAMES DION SMITH, ) ) Appellant, ) NOT FOR PUBLICATION ) -VS- ) Case No. F-2008-786 ) FILED THE STATE OF OKLAHOMA, ) IN COURT OF CRIMINAL APPEALS ) STATE OF OKLAHOMA Appellee. ) FEB 8 2010 SUMMARY OPINION MICHAEL S. RICHIE CHAPEL, Judge: CLERK 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 herby 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 ATTORNEYS ON APPEAL RICHARD CLARK CURTIS M. ALLEN PUBLIC DEFENDER’S OFFICE ASSISTANT PUBLIC DEFENDER TULSA, OKLAHOMA TULSA, OKLAHOMA ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLANT JASON RUSH KEELEY L. HARRIS ASSISTANT DISTRICT ATTORNEY ASSISTANT ATTORNEY GENERAL TULSA COUNTY COURTHOUSE 313 NE 21ST STREET TULSA, OKLAHOMA OKLAHOMA CITY, OKLAHOMA ATTORNEY FOR APPELLEE ATTORNEY FOR APPELEE 2 (Tr. of August 8, 2008, hearing on State’s application to accelerate, pp. 4 – 5.) 2 OPINION BY: CHAPEL, J. JOHNSON, P.J.: CONCUR A. JOHNSON, V.P.J.: CONCUR LUMPKIN, J.: DISSENT LEWIS, J.: CONCUR 3 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. 2

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