Johnnie Edward Romo v State Of Oklahoma

O-98-461

Filed: Apr. 13, 1999

Not for publication

Prevailing Party: Johnnie Edward Romo

Summary

# Johnnie Edward Romo appealed his conviction for Embezzlement by Employee and False Declaration of Ownership. Conviction and sentence were reversed and remanded with instructions to dismiss. No judge dissented.

Decision

THEREFORE IT IS THE ORDER OF THIS COURT that the Order and Judgment entered on April 7, 1998, in Creek County District Court, Case Nos. CF 95-120 and CF 95-176, should be, and are hereby, REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. IT IS SO ORDERED. WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 13th day of April, 1999.

Issues

was there a timely prosecution of the State's Motion to Revoke suspended sentences?
did the prosecutor's stated policy affect the modification of Mr. Romo's sentence?

Findings

the revocation of Appellant's suspended sentences should be reversed and remanded with instructions to dismiss
the State did not exercise due diligence in prosecuting its applications to revoke
the trial court's decision to revoke was not supported due to the State's failure to timely prosecute

O-98-461

Apr. 13, 1999

Johnnie Edward Romo

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Johnnie Edward Romo pled guilty on December 11, 1995, in Creek County District Court, Case No. CF 95-120, to False Declaration of Ownership (Count 2) and in Case No. CF 95-176, to Embezzlement by Employee. He was sentenced to two (2) years in each case, suspended, to run concurrently with each other. Rules and Conditions of Probation were imposed. The State’s Application to Revoke Suspended Sentence was granted on April 7, 1998, and Appellant’s suspended sentences were revoked in full. From the District Court’s Order and Judgment on suspended sentence, Appellant appealed.

Pursuant to Rule 11.2(A)(2), Rules of the Oklahoma Court of Criminal Appeals, Title-22, Ch.18, App. (1998), this appeal was automatically assigned to the Accelerated Docket of this Court. The propositions or issues were presented to this Court in oral argument on April 1, 1999, pursuant to Rule 11.2(F). At the conclusion of oral argument, the parties were advised of the decision of this Court.

On appeal, Appellant raised two (2) propositions of error: 1. The Order revoking Mr. Romo’s suspended sentences should be vacated because the State failed to prosecute its Motion to Revoke in a timely manner; specifically, the State waited one year between the date Mr. Romo’s Motion for New Trial was filed and the date he was brought to appear on the application, and the one and one-half years between the time the application was filed and the date of Mr. Romo’s appearance, and 2. Because the prosecutor seemed to announce that his policy was to reduce a defendant’s sentence by six months for stipulating to the allegations, and because Mr. Romo did stipulate to the allegations, this Court should modify the sentence by six months, or in the alternative, allow Mr. Romo to withdraw his stipulation to the allegations.

After thoroughly considering the proposition raised and argument presented to this Court, we find, by a vote of 3 to 0, that the revocation of Appellant’s suspended sentences should be REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The decision of a trial court to revoke a suspended sentence in whole or in part lies within the discretion of the trial court and that decision will not be disturbed absent an abuse of discretion. See Harris v. State, 1989 OK CR 10, 13, 772 P.2d 1329, 1331. However, in this case, the record shows the State did not exercise due diligence in prosecuting its applications to revoke. It appears the State allowed Appellant’s suspended sentences to expire before actually obtaining his presence in open court, even though his whereabouts were readily apparent, or could easily have been determined, from a reading of the District Court record. See e.g. Avance v. Mills, 1972 OK CR 89, 114, 495 P.2d 828, 831.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 13th day of April, 1999.

CHARLES A. JOHNSON, Judge
CHARLES S. CHAPEL, Judge
STEVE LILE, Judge

ATTEST: Clerk

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Footnotes:

Okla. Stat. tit. 22 § 1080
Harris v. State, 1989 OK CR 10, 13, 772 P.2d 1329, 1331.
Avance v. Mills, 1972 OK CR 89, 114, 495 P.2d 828, 831.

Oklahoma Statutes citations:

No Oklahoma statutes found.

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:

Harris v. State, 1989 OK CR 10, I 13, 772 P.2d 1329, 1331
Avance v. Mills, 1972 OK CR 89, I 114, 495 P.2d 828, 831