Rosa Maria Fechner v The State Of Oklahoma

RE 2000-1257

Filed: Oct. 16, 2001

Not for publication

Prevailing Party: Rosa Maria Fechner

Summary

Rosa Maria Fechner appealed her conviction for Furnishing Beer to a Person Under Twenty-One Years of Age. Her conviction and sentence were reversed and remanded with instructions to dismiss. Judge Reta M. Strubhar dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the revocation order of the District Court of Beaver County is REVERSED and the matter is REMANDED to the District Court with INSTRUCTIONS TO DISMISS. IT IS SO ORDERED. WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 16th day of October, 2001.

Issues

• was there authority for the trial court to lengthen Appellant's original Judgment and Sentence by an intervening revocation order
• did the State provide sufficient evidence of the violation alleged in the application to revoke
• did the revocation fail to provide Appellant notice in violation of due process

Findings

• The trial court lacked authority to lengthen Appellant's original Judgment and Sentence by an intervening revocation order.
• The evidence was not sufficient to support the revocation of Appellant's sentence.

RE 2000-1257

Oct. 16, 2001

Rosa Maria Fechner

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ACCELERATED DOCKET ORDER REVERSING AND REMANDING WITH INSTRUCTIONS TO DISMISS

On August 30, 1999, Appellant pled guilty in the District Court of Beaver County, Case No. CM-99-150, to Furnishing Beer to a Person Under Twenty-One Years of Age. Appellant was sentenced to one year, suspended, with misdemeanor rules and conditions of probation, and was fined $100.00 plus costs and fees. The State filed an application to revoke Appellant’s suspended sentence on January 3, 2000. Following a hearing March 22, 2000, the trial judge found Appellant violated the rules and conditions of probation. Appellant was sentenced to one year in the Beaver County Jail with six months suspended. Appellant was granted an appeal out of time on August 22, 2000, Case No. PC 2000-1072. Appellant appeals from the revocation of her 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 lacked authority to lengthen Appellant’s original Judgment and Sentence by an intervening revocation order.
2. The revocation of Appellant’s sentence must be vacated because there was insufficient evidence of the violation alleged in the application to revoke.
3. Revocation based on facts and law not set forth in the application to revoke failed to provide Appellant notice in violation of due process.

Oral argument was held October 11, 2001, pursuant to Rule 11.2(F). At the conclusion of oral argument, the parties were advised of the decision of this Court. The State agreed with Appellant’s first proposition of error. However, because we find merit to Appellant’s second proposition of error, we do not find it necessary to address either the first or third propositions of error. As to Appellant’s second proposition of error, we find by a vote of four (4) to zero (0), that the State failed to prove by a preponderance of the evidence the violations alleged in the application to revoke.

IT IS THEREFORE THE ORDER OF THIS COURT that the revocation order of the District Court of Beaver County is REVERSED and the matter is REMANDED to the District Court with INSTRUCTIONS TO DISMISS. IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 16th day of October, 2001.

1 In the State’s Response to Proposition I, the State concedes that the trial court lacked the authority to order a suspension of sentence that would run beyond the original one year term, which was to expire August 29, 2000.
2 GARY L. LUMPKIN, Presiding Judge
CHARLES A. JOHNSON, Vice Presiding Judge
CHARLES S. CHAPEL, Judge
RETA M. STRUBHAR, Judge
ATTEST: Clerk

3

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Footnotes:

1. In the State's Response to Proposition I, the State "concedes that the trial court lacked the authority to order a suspension of sentence that would run beyond the original one year term, which was to expire August 29, 2000."

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.