Brian Anderson Duckett v State Of Oklahoma

RE-2004-812

Filed: Oct. 3, 2005

Not for publication

Prevailing Party: Brian Anderson Duckett

Summary

Brian Anderson Duckett appealed his conviction for Unlawful Possession of A Controlled Drug (Crack Cocaine). His conviction and sentence were reversed. Judge Charles A. Johnson dissented. In this case, Duckett had initially received a three-year suspended sentence after entering a guilty plea in 2000. However, in 2002, the State tried to revoke his probation due to violations. Even though Duckett confessed to the violations, his sentencing was repeatedly postponed. Eventually, he failed to appear at a hearing in 2004, which led to the court revoking his suspended sentence and sentencing him to two years in prison. Duckett argued that his probation had already expired, and the court had no right to sentence him after that time. The Appeals Court agreed with him, stating that although his violations were acknowledged, the court couldn't legally punish him after his probation was over. Thus, the court ordered that his sentence be dismissed, and he be released from custody immediately.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court of Tulsa County revoking Appellant's suspended sentence in Case No. CF-2000-477 is REVERSED and this matter is REMANDED to the District Court with instructions to DISMISS and ORDER Appellant's immediate release from custody. The Clerk of this Court is directed to transmit copies of this order to the District Court of Tulsa County, the Honorable Thomas C. Gillert, District Judge, the Court Clerk of Tulsa County, Appellant and counsel of record. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision. IT IS SO ORDERED.

Issues

• Was there a valid basis for the revocation of Appellant's suspended sentence after the probationary period had expired?
• Did the trial court have jurisdiction to impose a sentence based on a failure to appear at a hearing conducted after the expiration of the suspended sentence?
• Was the District Court's continuous postponement of sentencing without the defendant's request a violation of the jurisdiction to revoke the suspended sentence?
• Did the timely filing of the application to revoke suspend the expiration of the probationary period indefinitely?

Findings

• the court erred
• the order of revocation was invalid
• Appellant must be released from imprisonment

RE-2004-812

Oct. 3, 2005

Brian Anderson Duckett

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

REMANDING MATTER TO THE DISTRICT COURT OF TULSA COUNTY WITH INSTRUCTIONS TO DISMISS

On May 3, 2000, Appellant, represented by counsel, entered a guilty plea to a charge of Unlawful Possession of A Controlled Drug (Crack Cocaine) in Case No. CF-2000-477 in the District Court of Tulsa County. Appellant was given a three (3) year suspended sentence. On October 2, 2002, the State of Oklahoma filed an Application to Revoke Appellant’s suspended sentence, alleging various violations of the terms and conditions of Appellant’s probation. Appellant was arrested on January 6, 2003, and on January 13, 2003, he confessed the State’s Application to Revoke. The District Court of Tulsa County, the Honorable Thomas C. Gillert, District Judge, held Appellant’s sentencing in abeyance, pending Appellant’s agreement to find employment, pay his probation fees, and enroll in a substance abuse program. Appellant was directed to reappear before the District Court on April 14, 2003.

On April 14, 2003, Appellant reappeared. At that time, and on numerous occasions thereafter, the District Court passed Appellant’s sentence review hearing and continued Appellant’s case. Appellant did not request the continuances, nor did he object to them. Appellant failed to appear at a scheduled hearing on June 14, 2004, at which time the District Court issued a warrant for his arrest. Appellant was arrested and appeared before Judge Gillert on June 17, 2004. His sentencing review hearing was ultimately conducted on July 26, 2004, at which time Judge Gillert revoked Appellant’s suspended sentence for his failure to appear on June 14, 2004. Appellant was sentenced to two (2) years of the original three (3) year suspended sentence. It is from this order that Appellant appeals.

Appellant raises one (1) proposition of error on appeal:

1. Appellant Duckett had served his suspended sentence in its entirety prior to the revocation of his probation. Additionally, the District Court’s decision to revoke probation was based upon Appellant Duckett’s failure to appear at a post-expiration hearing. The District Court’s order of revocation was invalid and Appellant Duckett must be released from imprisonment.

We find merit in Appellant’s argument and therefore REMAND this matter to the District Court of Tulsa County with instructions to DISMISS.

Appellant acknowledges in his brief filed with this Court that he was sentenced to three (3) years probation on May 30, 2000. He also does not dispute that the State timely filed its Application to Revoke Suspended Sentence on October 2, 2002, nor does he dispute that he confessed the revocation application on January 13, 2003, prior to the expiration of his three (3) year probationary term. Appellant’s claim is that the District Court was without authority to sentence him on July 26, 2004, to serve time in a case where the probationary period had expired, based upon Appellant’s failure to appear at a court hearing, which also occurred after the expiration of his suspended sentence.

Appellant recognizes and admits that the District Court acted in his best interest by extending and personally supervising his probationary term. In fact, Appellant acknowledges the District Court’s continuing efforts to assist him in re-establishing himself as a contributing citizen. However, once the probationary period of his suspended sentence expired, Appellant argues that the District Court could not sentence him to serve time in Case No. CF-2000-477.

Both parties concede that this Court has ruled on numerous occasions that a trial court is without jurisdiction to revoke a suspended sentence after expiration of its term. See, Avance U. Mills, 1972 OK CR 89, ¶ 10, 495 P.2d 828, 830-831. This Court has also noted, however, that the filing of an application to revoke a suspended sentence tolls the passage of time for purposes of rendering the revocation proceedings timely. This is true even if the revocation hearing is held after the expiration of the original sentence. Id., 1972 OK CR 89, ¶ 14; 495 P.2d at 831. The purpose of tolling the time, as noted in Avance, is to prevent a probationer from profiting should he elude capture until his sentence expired or to prevent a probationer from requesting continuances until his sentence expires.

However, the tolling of the expiration time for a suspended sentence is not limitless. In Frazier v. State, 1989 OK CR 78, 793 P.2d 1365, we rejected the premise that a timely filed application to revoke forever tolls the expiration of a suspended sentence. This Court held in Frazier that revocation of a defendant’s suspended sentence could not be based upon an act committed after his suspended sentence had expired. Frazier, 1989 OK CR 78, ¶ 6, 793 P.2d at 1366.

There is no question here that Appellant was present and available at all times subsequent to the time the State’s application to revoke was confessed. There is no contention here by the State that Appellant attempted to elude prosecution for his probationary lapses, nor is there a claim that Appellant absconded from the jurisdiction in an attempt to have the time for his suspended sentence expire in his absence. Rather, Appellant’s sentencing was repeatedly postponed, in an apparent attempt to ensure Appellant’s compliance with the terms and conditions of his probation.

Once the suspended sentence had expired, the District Court is without jurisdiction to revoke that suspended sentence. This Court has never suggested that a timely filed application to revoke can serve to prevent a suspended sentence from ever expiring. The State cannot permanently extend a defendant’s suspended sentence simply by failing to hold a sentencing hearing after an application to revoke has been filed and the defendant has either confessed the application or the District Court finds the application has merit.

Indefinite postponement of a defendant’s sentencing pursuant to an application to revoke, due to no delay on the defendant’s part, cannot extend the expiration time for a suspended sentence. The State cites no law supporting such a proposition, and we find none. We find in this instance that although Appellant confessed the State’s application to revoke, Judge Gillert ultimately revoked Appellant’s suspended sentence based upon his failure to appear at a hearing conducted after Appellant’s suspended sentence had expired.

IT IS THEREFORE THE ORDER OF THIS COURT that the order of the District Court of Tulsa County revoking Appellant’s suspended sentence in Case No. CF-2000-477 is REVERSED and this matter is REMANDED to the District Court with instructions to DISMISS and ORDER Appellant’s immediate release from custody.

The Clerk of this Court is directed to transmit copies of this order to the District Court of Tulsa County, the Honorable Thomas C. Gillert, District Judge, the Court Clerk of Tulsa County, Appellant, and counsel of record. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

IT IS SO ORDERED.

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Footnotes:

1. Avance U. Mills, 1972 OK CR 89, ¶ 10, 495 P.2d 828, 830-831.
2. Frazier v. State, 1989 OK CR 78, 793 P.2d 1365.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for persons convicted of a felony
• Okla. Stat. tit. 22 § 991a (2011) - Suspended sentences
• Okla. Stat. tit. 22 § 982 (2011) - Revocation of probation
• Okla. Stat. tit. 22 § 982a (2011) - Continuance of probation
• Okla. Stat. tit. 22 § 982b (2011) - Hearing required on 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:

• Avance U. Mills, 1972 OK CR 89, I 10, 495 P.2d 828, 830-831
• Frazier v. State, 1989 OK CR 78, 793 P.2d 1365