David Robert Montgomery v The State of Oklahoma

RE 2003-0857

Filed: Apr. 22, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

David Robert Montgomery appealed his conviction for Burglary, Second Degree. Conviction and sentence of three years revoked from his five-year suspended sentence were affirmed. No judges dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT, that the revocation of Appellant's suspended sentence in the District Court of McCurtain County, Case No. CRF-1998-245A, is AFFIRMED, but the revocation of three and one-half years is MODIFIED to three years. IT IS SO ORDERED.

Issues

• Was the trial judge without authority to revoke three and one-half years of Appellant's sentence?
• Was the revocation excessive in this case?

Findings

• the court erred in calculating the remaining suspended sentence, which was modified to three years
• the revocation of the suspended sentence was not excessive

RE 2003-0857

Apr. 22, 2004

David Robert Montgomery

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

Appellant pled guilty December 3, 1998, in the District Court of McCurtain County, Case No. CRF-98-245A, to Burglary, Second Degree. Sentencing was deferred for four years, with rules and conditions of probation. On June 26, 2000, upon the State’s motion to accelerate, Judgment and Sentence was imposed, and Appellant was sentenced to five years with all except the first six months suspended. On September 25, 2001, upon the State’s motion to revoke, the District Court revoked six months of the five year suspended sentence. Then, following a hearing August 26, 2002, upon the State’s motion to revoke, the District Court revoked one year of the five year suspended sentence. Upon the State’s third application to revoke, following a hearing July 11, 2003, the Honorable Gary L. Brock, Special Judge, revoked three and one-half years of the five year suspended sentence. Judge Brock found Appellant failed to maintain employment, failed to pay restitution, failed to pay court costs, failed to complete community service, and committed the new crimes of Driving Under Suspension and Driving Without A Seat Belt. Judge Brock concluded: Multiple probation violations (both accelerations and revocations) have been filed on this Defendant, yet he continues to blatantly violate the rules of his suspended sentence.

Appellant appeals from the revocation of his suspended sentence. On appeal, Appellant raised the following propositions of error:

1. The trial judge was without authority to revoke three and one-half years of Appellant’s sentence.
2. The revocation was excessive in this case.

As for Appellant’s first proposition of error, the State answers: It appears from the record that the judge did not intend to extend the defendant’s sentence but made a computational error in calculating the time remaining. Therefore, the defendant’s revoked sentence should be modified to reflect a revocation of the remainder of his suspended sentence or three years. And, finding the revocation in full of Appellant’s suspended sentence is not so excessive as to shock the conscience of the Court, we decline to modify Appellant’s sentence. Middaugh v. State, 1988 OK CR 295, 1920-21, 767 P.2d 432.

IT IS THEREFORE THE ORDER OF THIS COURT, that the revocation of Appellant’s suspended sentence in the District Court of McCurtain County, Case No. CRF-1998-245A, is AFFIRMED, but the revocation of three and one-half years is MODIFIED to three years.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 22nd day of April, 2004.

Charles A. Johnson, Presiding Judge
Steve Lile, Vice Presiding Judge
Gary John L. Lumpkin, Judge
Charles S. Chapel, Judge
Reta M. Strubhar, Judge

ATTEST: Clerk

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Footnotes:

1. See Okla. Stat. tit. 22 § 982a.
2. See Okla. Stat. tit. 21 § 142.
3. Middaugh v. State, 1988 OK CR 295, 1920-21, 767 P.2d 432.

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:

• Middaugh v. State, 1988 OK CR 295, I 20-21, 767 P.2d 432