Jeff Bryson v The State Of Oklahoma
RE 2000-0392
Filed: Feb. 16, 2001
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Jeff Bryson appealed his conviction for Lewd Molestation and Rape by Force and Fear. The conviction and sentence were for thirty years, with twenty years suspended on each of the 98 counts. Judge Lumpkin dissented.
Decision
IT IS THEREFORE THE ORDER OF THIS COURT, by a four to zero vote, the revocation of Appellant's suspended sentences is AFFIRMED. However, by a vote of three to one, the sentences for Counts 1 through 48 for Lewd Molestation are modified in the Judgment and Sentence on Plea of Guilty issued July 24, 1989, from thirty (30) years to twenty (20) years. The matter is REMANDED to the District Court for further proceedings consistent with this Order. IT IS so ORDERED. the WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 16 day February, 2001.
Issues
- Was there an error in the trial court's sentencing of thirty years and subsequent revocation of twenty years in Counts 1 through 48 due to it being in excess of the statutory maximum for the charged crime?
- Did the State present admissible evidence to support its allegation of Appellant's violation of probation?
- Was Appellant denied his Sixth Amendment right to confront his accuser at the revocation hearing?
Findings
- The trial court erred in sentencing Appellant to thirty years for Counts 1 through 48, as it exceeded the statutory maximum for the charged crime.
- The evidence supporting the allegation of Appellant's violation of probation was not sufficient.
- Appellant was not denied his Sixth Amendment right to confront his accuser at the revocation hearing.
RE 2000-0392
Feb. 16, 2001
Jeff Bryson
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
Jeff Bryson, )
) Appellant, )
) V. ) No. RE 2000-0392
) THE STATE OF OKLAHOMA, )
) Appellee. )
ACCELERATED DOCKET ORDER
Appellant pled guilty August 2, 1989, in the District Court of Muskogee County, Case No. CRF-89-110, to Counts 1-48 – Lewd Molestation and Counts 49-98 – Rape By Force And Fear. Appellant was sentenced to thirty years with twenty years suspended on each of the 98 counts, to run concurrently, with rules and conditions of probation. On February 10, 2000, the State filed an application to revoke Appellant’s suspended sentences. Following a hearing February 28 and March 21, 2000, Appellant’s suspended sentences were revoked in full, twenty years on each count. Appellant appeals from the revocation of the suspended sentences. Pursuant to Rule 11.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2000), the appeal was automatically assigned to the Accelerated Docket of this Court.
Appellant raised the following propositions of error on appeal:
1. The trial court’s sentencing of thirty years and subsequent revocation of twenty years in Counts 1 through 48 was invalid because it was in excess of the statutory maximum for the charged crime.
2. The only evidence presented by the State to support its allegation of Appellant’s violation of probation was inadmissible.
3. Appellant was denied his Sixth Amendment right to be confronted by his accuser at the revocation hearing.
Oral argument was held February 1, 2001, pursuant to Rule 11.2(F). At the conclusion of oral argument, the parties were advised of the decision of this Court. We agree with Appellant, as set forth in Appellant’s first proposition of error, that the sentences received for Counts 1 through 48 were in excess of the statutory maximum for the charged crimes. See 21 O.S.1981, § 1123. Lewd molestation carries a punishment range of one to twenty years. We find no merit to Appellant’s second and third propositions of error.
IT IS THEREFORE THE ORDER OF THIS COURT, by a four to zero vote, the revocation of Appellant’s suspended sentences is AFFIRMED. However, by a vote of three to one, the sentences for Counts 1 through 48 for Lewd Molestation are modified in the Judgment and Sentence on Plea of Guilty issued July 24, 1989, from thirty (30) years to twenty (20) years. The matter is REMANDED to the District Court for further proceedings consistent with this Order. IT IS so ORDERED.
the WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 16 day February, 2001.
AFFIRMS GARY L. LUMPKIN, IN PART, Presiding
DISSENTS Judge IN PART the
John CHARLES A. JOHNSON, Vice Presiding Judge
Charls Chand CHARLES S. CHAPEL, Judge
Stane half STEVE LILE, Judge
ATTEST: Clerk
LUMPKIN, PRESIDING JUDGE: CONCUR IN PART/DISSENT IN PART
I concur in the Court’s decision to affirm the revocation of suspended sentences in each of the Appellant’s cases. However, I must dissent to the Court taking action in modifying a final sentence when that issue is not before the Court and the Court does not have jurisdiction in this proceeding to take that action. The judgments and sentences in each of these cases have become final. Once that finality has been established, the only method by which any court, including this Court, can reassume jurisdiction over the validity of those judgments and sentences is through the provisions of the Uniform Post-Conviction Procedure Act, 22 O.S.1991, § 1080, et seq. The scope of our review in an appeal of a revocation of a suspended sentence is set forth in Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1999). That rule provides, However, the scope of review is limited to the validity of the revocation order. The appropriate appeal time commences upon imposition of the order revoking suspended sentence. The validity of the predicate conviction can only be appealed through a separate appeal pursuant to the regular felony and misdemeanor procedures of these rules, Sections II and III, or the certiorari procedure, Section IV of these rules. The Appellant did not commence a direct appeal of these convictions, therefore his only vehicle for addressing the validity of those judgments and sentences is through the post-conviction procedure, and not within the scope of the revocation of his suspended sentences. If this Court had jurisdiction at this time to address the validity of the sentences in Counts 1 through 48, I would join with the Court. However, I cannot join in an act by this Court which addresses a matter not before the Court and over which this Court does not have jurisdiction at this time. The Appellant should be instructed the proper procedure is to file an Application for Post-Conviction Relief and allow the District Court the opportunity to first address the issue of whether or not the sentences set forth on the judgment and sentence are in excess of the statutory maximum for the charged crime. If the District Court fails to grant that application, once the evidence is presented to it, then this Court would have jurisdiction in a timely perfected appeal to adjudicate the issue.
Footnotes:
- See 21 O.S.1981, § 1123.
- 22 O.S.1991, § 1080, et seq.
- The scope of review is limited to the validity of the revocation order.
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 1123 - Lewd Molestation
- Okla. Stat. tit. 22 § 1080 - Uniform Post-Conviction Procedure Act
- Okla. Stat. tit. 22 § 11.2 - Rules of the Oklahoma Court of Criminal Appeals
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:
- No case citations found