Robert C. Biby v The State of Oklahoma

RE 2000-1170

Filed: Aug. 10, 2001

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Robert C. Biby appealed his conviction for revocation of his suspended sentences. Conviction and sentence were upheld for Case No. CF-96-437, while the revocation for Case No. CF-96-551 was reversed and dismissed. The State agreed that it was wrong to revoke the expired suspended sentence. Judge Reta M. Strubhar dissented.

Decision

Accordingly, the revocation of Appellant's suspended sentence in District Court Case No. CF-96-437 is AFFIRMED and the revocation of Appellant's suspended sentence in District Court Case No. CF-96-551 is REVERSED and REMANDED to the District Court of Garfield County with instructions to DISMISS. Oral argument scheduled for Thursday, September 6, 2001, at 1:30 p.m., is STRICKEN. IT IS so ORDERED. WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 10th day of August, 2001.

Issues

• was there jurisdiction to revoke the Appellant's expired suspended sentence in CF-96-551?
• did the State timely file the application to revoke the Appellant's suspended sentence?

Findings

• the trial court lacked jurisdiction to revoke the Appellant's expired suspended sentence in CF-96-551
• the revocation of Appellant's suspended sentence in District Court Case No. CF-96-437 is AFFIRMED
• the revocation of Appellant's suspended sentence in District Court Case No. CF-96-551 is REVERSED and REMANDED to the District Court with instructions to DISMISS
• oral argument scheduled for September 6, 2001, is STRICKEN

RE 2000-1170

Aug. 10, 2001

Robert C. Biby

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

ROBERT C. BIBY,
Appellant,
v.
No. RE 2000-1170
THE STATE OF OKLAHOMA,
Appellee.

ACCELERATED DOCKET ORDER AFFIRMING REVOCATION OF SUSPENDED SENTENCE IN DISTRICT COURT OF GARFIELD COUNTY CASE NO. CF-96-437, REVERSING AND REMANDING ORDER REVOKING SUSPENDED SENTENCE IN DISTRICT COURT OF GARFIELD COUNTY CASE NO. CF-96-551 WITH INSTRUCTIONS TO DISMISS, AND STRIKING ORAL ARGUMENT

On March 11, 1997, Appellant pled guilty and was sentenced to a five year suspended sentence for Larceny of an Automobile and a one year suspended sentence for Obtaining Money, Property or Valuable Thing by Means of a False or Bogus Check in Garfield County District Court Case Nos. CF-96-437 and CF-96-551. These sentences were ordered to run concurrently.

Following a hearing September 5, 2000, on the State’s motions to revoke the suspended sentences, the Honorable Richard M. Perry, Associate District Judge, revoked Appellant’s suspended sentences in full. Appellant appeals from the revocation of his suspended sentences. Pursuant to Rule 11.2(A)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2000), this appeal was automatically assigned to the Accelerated Docket of this Court.

Appellant raised the following proposition of error: The trial court lacked jurisdiction to revoke Appellant’s expired suspended sentence in CF-96-551 because the State failed to timely file the application to revoke. The State answered in its Accelerated Docket brief filed in this Court May 17, 2001, that [t]he State agrees that the trial court lacked jurisdiction to revoke the Appellant’s expired suspended sentence in Case No. CF-96-551.

On July 16, 2001, Appellant filed a Notice to the Court of State’s Confession of Error, with Motion to Grant Relief on the Briefs and Strike Oral Argument. Appellant requests that [i]n the interest of judicial efficiency and economy, the case be remanded with instructions to dismiss the revocation of his suspended sentence in CF-96-551 based on the briefs already on file in this case, and that the oral argument scheduled for 1:30 p.m. September 6, 2001, be stricken. We agree. Accordingly, the revocation of Appellant’s suspended sentence in District Court Case No. CF-96-437 is AFFIRMED and the revocation of Appellant’s suspended sentence in District Court Case No. CF-96-551 is REVERSED and REMANDED to the District Court of Garfield County with instructions to DISMISS. Oral argument scheduled for Thursday, September 6, 2001, at 1:30 p.m., is STRICKEN.

IT IS so ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 10th day of August, 2001.

GARY L. LUMPKIN, Presiding Judge
CHARLES A. JOHNSON, Vice Presiding Judge
CHARLES S. CHAPEL, Judge
RECUSED
RETA M. STRUBHAR, Judge
STEVE LILE, Judge

ATTEST: Clerk

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Footnotes:

1. Okla. Stat. tit. 22 § 18
2. Okla. Stat. tit. 22 § 18

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:

• No case citations found