Kevin W. Treat v State Of Oklahoma

RE-2000-1470

Filed: Nov. 27, 2001

Not for publication

Prevailing Party: State Of Oklahoma

Summary

#James W. Patterson appealed his conviction for Driving Under the Influence. Conviction and sentence were affirmed with some issues regarding how the sentence should be served. Judge Custer dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT, by a vote of three (3) to one (1), that the order of the District Court of Garfield County revoking Appellant's suspended sentence in Case No. CF-98-544 is AFFIRMED, however the matter is REMANDED to the District Court for entry of an order specifying whether Appellant's sentence is to be served concurrently or consecutively with his subsequent offenses. IT IS so ORDERED. the WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 27 day of November, 2001.

Issues

• Was there an error in leaving it to the Department of Corrections to decide whether the sentence should be run concurrently or consecutively with subsequent offenses?
• Did the trial court properly revoke the Appellant's suspended sentence?
• Should the District Court have specified whether Appellant's sentence was to be served consecutively or concurrently?

Findings

• the trial court erred by leaving the decision of sentence concurrency to the Department of Corrections
• Appellant's suspended sentence was properly revoked
• the matter is remanded for entry of an order specifying sentence concurrency or consecutiveness

RE-2000-1470

Nov. 27, 2001

Kevin W. Treat

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

ACCELERATED DOCKET ORDER

On September 23, 1998, Appellant, represented by counsel, pled guilty to Driving Under the Influence After Former Conviction of Two or More Felonies in the District Court of Garfield County, Case No. CF-98-544. He was given a seven (7) year suspended sentence. On July 28, 1999, the State filed an application to revoke the suspended sentence, and an Amended Application to Revoke was filed on September 1, 2000. On October 30, 2000, Appellant’s suspended sentence was revoked in full. From this Judgment and Sentence, Appellant appeals.

On appeal Appellant raised one proposition of error:
1. The trial court erred by leaving it to the Department of Corrections to decide whether the sentence in the present case should be run concurrently or consecutively with the subsequent offense.

Pursuant to Rule 11.2(A)(3), 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. The propositions or issues were presented to this Court in oral argument November 8, 2001, pursuant to Rule 11.2(F). At the conclusion of oral argument, the parties were advised of the decision of this Court.

Appellant’s suspended sentence was properly revoked. However, we find merit in Appellant’s claim that the District Court should have specified whether Appellant’s sentence was to be served consecutively or concurrently, and that the decision of how the sentence was to be served should not have been left to the discretion of the Department of Corrections. Custer v. State, 727 P.2d 973, 975 (1986); 22 O.S. § 976.

IT IS THEREFORE THE ORDER OF THIS COURT, by a vote of three (3) to one (1), that the order of the District Court of Garfield County revoking Appellant’s suspended sentence in Case No. CF-98-544 is AFFIRMED, however the matter is REMANDED to the District Court for entry of an order specifying whether Appellant’s sentence is to be served concurrently or consecutively with his subsequent offenses. IT IS so ORDERED.

the WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 27 day of November , ,2001.

GARY L. LUMPKIN, Presiding Judge
CHARLES A. JOHNSON, Vice Presiding Judge
CHARLES S. CHAPEL, Judge
STEVE LILE, Judge

ATTEST: Clerk

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Footnotes:

1. 22 O.S. § 976.
2. Custer v. State, 727 P.2d 973, 975 (1986).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Driving Under the Influence
• Okla. Stat. tit. 22 § 976 (2011) - Sentence revocation

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:

• Custer v. State, 727 P.2d 973 (1986)