Michael Wayne Gay v The State Of Oklahoma

RE 2002-1245

Filed: Aug. 15, 2003

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Michael Wayne Gay appealed his conviction for robbery with a weapon and conspiracy. His conviction and sentence were upheld, but the sentence for conspiracy was modified. Judge Charles A. Johnson dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT, that the revocation of Appellant's suspended sentence in the District Court of Muskogee County, Case No. CF-2000-0508, is AFFIRMED, but the twenty-five (25) year sentence for Conspiracy is MODIFIED to ten years (10). IT IS SO ORDERED.

Issues

• Was there a violation of Mr. Gay's right to due process under the Fourteenth Amendment due to the prosecution's failure to give notice of the grounds for revocation?
• Did Mr. Gay's sentence for conspiracy exceed the statutory maximum, warranting modification?

Findings

• the record does not support Appellant's contention that he was denied due process
• the sentence for Conspiracy is modified to ten years

RE 2002-1245

Aug. 15, 2003

Michael Wayne Gay

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant pled guilty January 26, 2001, in the District Court of Muskogee County, Case No. CF-2000-508, to Robbery With a Weapon and Conspiracy. Appellant was sentenced to twenty-five years imprisonment on each count with all but the first ten years suspended, to run concurrently, and with rules and conditions of probation. On December 18, 2001, the State filed an Application to Revoke Suspended Sentence alleging Appellant lied under oath. Following a hearing February 11, 2002, the Honorable Mike Norman, District Judge, revoked Appellant’s suspended sentence in full. Appellant appeals from the revocation of his suspended sentence.

On appeal Appellant raised the following propositions of error:

1. The prosecution’s failure to give notice of the grounds for revocation that he later raised during the hearing and the trial court’s subsequent revocation of Mr. Gay’s suspended sentence violated Mr. Gay’s right to due process under the Fourteenth Amendment to the United States Constitution.

2. Mr. Gay’s sentence for conspiracy was greater than the statutory maximum; therefore, the sentence must be modified.

The record does not support Appellant’s contention that he was denied due process. We have held that notice sufficient to apprise the defendant of the grounds upon which revocation is sought is essential. See Lennox v. State, 1984 OK CR 22, ¶ 6, 674 P.2d 1146. In this case, the State alleged Appellant lied under oath. The record supports the State’s allegation and this was the sole basis for the revocation of Appellant’s suspended sentence.

As for Appellant’s second proposition of error, the State agrees Appellant’s sentence for Conspiracy exceeds the statutory maximum and should be modified. The State sets out that the statute providing sentencing guidelines for Conspiracy convictions in effect at the time Appellant committed his crimes provided for a punishment range not to exceed ten years. 21 O.S.Supp. 1999, § 421 (C).

IT IS THEREFORE THE ORDER OF THIS COURT, that the revocation of Appellant’s suspended sentence in the District Court of Muskogee County, Case No. CF-2000-0508, is AFFIRMED, but the twenty-five (25) year sentence for Conspiracy is MODIFIED to ten years (10).

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 15th day of August, 2003.

Chris Blue
CHARLES A. JOHNSON, Presiding Judge
Steve Yela
STEVE LILE, Vice Presiding Judge
GARY L. LUMPKIN, Judge
CHARLES S. CHAPEL, Judge
RETA M. STRUBHAR, Judge

ATTEST: Clerk

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Footnotes:

1. See Lennox U. State, 1984 OK CR 22, II 6, 674 P.2d 1146.
2. 21 O.S.Supp. 1999, § 421 (C).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 421 (1999) - Sentencing guidelines for Conspiracy convictions
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentences for certain felonies

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:

• Lennox v. State, 1984 OK CR 22, II 6, 674 P.2d 1146