Marguerietta E. Boone v The State Of Oklahoma

RE 2001-0663

Filed: Feb. 11, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Appellant Marguerietta E. Boone appealed her conviction for the unauthorized use of a motor vehicle, possession of cocaine, and possession of drug paraphernalia. The original conviction led to a five-year suspended sentence on two counts and a one-year suspended sentence on the third count. On appeal, the conviction and sentence were partially affirmed, but the court modified the sentence to remove the requirement that it run consecutively with new cases. Judge Steve Lile dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the revocation of Appellant's suspended sentences in the District Court of Oklahoma County, Case No. CF-97-3464, is AFFIRMED, but the sentence is MODIFIED to delete the language "to run consecutively with new cases", and the matter is REMANDED to the District Court with INSTRUCTIONS to enter an amended Judgment and Sentence. IT IS so ORDERED. WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 11th day of February, 2002.

Issues

• was there jurisdiction for the trial judge to order the five year revocation sentence to run consecutively with new cases?
• did the trial judge properly execute the penalty previously imposed in the Judgment and Sentence during the revocation?

Findings

• the court erred in ordering the sentences to run consecutively with new cases
• the revocation of Appellant's suspended sentences is affirmed
• the sentence is modified to delete the language regarding consecutive sentencing
• the matter is remanded to the District Court with instructions to enter an amended Judgment and Sentence

RE 2001-0663

Feb. 11, 2002

Marguerietta E. Boone

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

AFFIRMING REVOCATION OF SUSPENDED SENTENCE BUT MODIFYING SENTENCE IMPOSED AND REMANDING TO DISTRICT COURT WITH INSTRUCTIONS TO ENTER AN AMENDED JUDGMENT AND SENTENCE

On October 2, 1997, Appellant pled guilty in the District Court of Oklahoma County, Case No. CF-97-3464, to Count 1 – Unauthorized Use of a Motor Vehicle, Count 2 – Possession of a Controlled Dangerous Substance (Cocaine) and Count 3 – Possession of Drug Paraphernalia. Appellant was given a five year suspended sentence on Counts 1 and 2 and a one year suspended sentence on Count 3.

On April 15, 2001, the State filed an amended application to revoke Appellant’s suspended sentences. Following a hearing May 15, 2001, the Honorable Susan P. Caswell, District Judge, revoked Appellant’s suspended sentences for Counts 1 and 2 in full, five years, to run concurrently. Judge Caswell found the one year sentence for Count 3 had expired. Caswell also ordered the sentences to run consecutively with new cases. Appellant appeals from the revocation of her suspended sentence.

On appeal Appellant raised the following proposition of error: The trial judge lacked jurisdiction to order the five year revocation sentence ‘to run consecutively with new cases’. We agree. The consequence of judicial revocation is to execute a penalty previously imposed in the Judgment and Sentence. Marutzky V. State, 1973 OK CR 398, IT 5, 514 P.2d 430. In this case the trial judge did not order these sentences to be run consecutively to new sentences in the original Judgment and Sentence and, therefore, cannot impose this additional penalty upon revocation.

IT IS THEREFORE THE ORDER OF THIS COURT that the revocation of Appellant’s suspended sentences in the District Court of Oklahoma County, Case No. CF-97-3464, is AFFIRMED, but the sentence is MODIFIED to delete the language to run consecutively with new cases, and the matter is REMANDED to the District Court with INSTRUCTIONS to enter an amended Judgment and Sentence. IT IS so ORDERED.

ATTEST: Clerk

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Footnotes:

1. 1. Marutzky V. State, 1973 OK CR 398, IT 5, 514 P.2d 430.
2. 2. Okla. Stat. tit. 22 § 982a.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 - Revocation of Suspended Sentences
• Okla. Stat. tit. 22 § 982a - Execution of Sentence

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:

• Marutzky v. State, 1973 OK CR 398, T 5, 514 P.2d 430