Desiray Jaibai Allen v The State Of Oklahoma

RE-2003-640

Filed: Apr. 30, 2004

Not for publication

Prevailing Party: Desiray Jaibai Allen

Summary

Desiray Jaibai Allen appealed his conviction for revoking his suspended sentence. The conviction and sentence were vacated. Judge Reta M. Strubhar dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS Court that the order of May 30, 2003, revoking Appellant's suspended sentence in Case No. CM-01-361 is VACATED and due to the fact the period of suspension has now expired, the Application to Revoke is DISMISSED. IT IS so ORDERED.

Issues

• Was there jurisdiction for the trial court to entertain Appellant's revocation hearing?
• Did Appellant's waiver of the twenty-day period occur before the period expired?
• Was it error for the District Court to enter an order revoking Appellant's suspended sentence?
• Is the Application to Revoke dismissed due to the expiration of the period of suspension?

Findings

• the court erred
• the application to revoke is dismissed

RE-2003-640

Apr. 30, 2004

Desiray Jaibai Allen

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ORDER REVERSING DISTRICT COURT’S ORDER REVOKING SUSPENDED SENTENCE

Appellant, through counsel, Lee Ann Jones Peters, appeals to this Court from an order revoking his one year suspended sentence in Custer County District Court, Case No. CM-01-361. On November 12, 2002, the State filed an Application to Revoke Appellant’s suspended sentence. Appellant entered a plea of not guilty to the application on December 6, 2002. The revocation hearing was held on April 24, 2003, before the Honorable Jill C. Weedon, Special Judge. On May 30, 2003, Appellant’s sentence was revoked in full. On June 30, 2003, Appellant filed a Petition in Error in this Court appealing the revocation order of the District Court. On December 12, 2003, Appellant filed his Brief in Chief, urging three propositions of error. On February 10, 2004, Appellee filed its Response to Appellant’s brief. Within its pleading the Attorney General has conceded the error. Appellee agrees the trial court was without jurisdiction to entertain Appellant’s revocation hearing since Appellant’s waiver of the twenty-day period was not executed until that period had expired. See 22 O.S.2001, Section 991b(A). In light of the foregoing argument, the existing record before us, the authorities cited by the parties herein, and the State’s confession of error, this Court FINDS it was error for the District Court to enter an order vacating Appellant’s suspended sentence.

IT IS THEREFORE THE ORDER OF THIS Court that the order of May 30, 2003, revoking Appellant’s suspended sentence in Case No. CM-01-361 is VACATED and due to the fact the period of suspension has now expired, the Application to Revoke is DISMISSED.

IT IS so ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 30 day of April, 2004.

CHARLES A. JOHNSON, Presiding Judge
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 22 O.S.2001, Section 991b(A).

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991b(A) - Revocation of Suspended 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:

No case citations found.