Derlon Antwon Bray v The State Of Oklahoma
RE 2007-0517
Filed: Feb. 4, 2008
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Derlon Antwon Bray appealed his conviction for multiple crimes, including drug possession and a drive-by shooting. His conviction and sentence were a ten-year suspended sentence for each crime, but on May 8, 2007, a judge revoked his suspended sentences entirely due to violations. The court found that the revocation was proper and upheld it. However, they also noted that one part of Bray's sentence was mistakenly recorded as ten years instead of the correct five years. So, they decided to fix that mistake but kept the rest of the revocation intact. Judge Arlene Johnson dissented.
Decision
IT IS THEREFORE THE ORDER OF THIS COURT, finding no abuse of discretion, that the revocation of Appellant's suspended sentence in the District Court of Oklahoma County, is AFFIRMED. However, the District Court Order Revoking Suspended Sentence in CF-2004-1266 must be corrected to reflect the sentence Appellant received on Count 2 was five years and not ten years. THEREFORE, this matter is REMANDED to the District Court of Oklahoma County for an order nunc pro tunc correcting the Order Revoking Suspended Sentence in full in CF-2004-1266 to reflect five years, and not ten years, revoked on Count 2. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision. IT IS so ORDERED.
Issues
- Was the sentence revoked on Count II in CF-2004-1266 exceeding the original sentence and required modification?
- Did the District Court abuse its discretion by excessive revocation of Appellant's suspended sentences?
Findings
- the court erred in sentencing on Count II in CF-2004-1266, which must be modified to five years instead of ten
- the District Court did not abuse its discretion by revoking Appellant's suspended sentences in full
- the matter is remanded to the District Court for an order nunc pro tunc correcting the Order Revoking Suspended Sentence in CF-2004-1266
RE 2007-0517
Feb. 4, 2008
Derlon Antwon Bray
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
ORDER AFFIRMING REVOCATION OF SUSPENDED SENTENCE BUT REMANDING MATTER TO DISTRICT COURT OF OKLAHOMA COUNTY FOR AN ORDER NUNC PRO TUNC
Appellant pled guilty May 3, 2005, to Possession of a Controlled Dangerous Substance with Intent to Distribute (Cocaine) in the District Court of Oklahoma County, Case No. CF-2003-3709. He was sentenced to ten years suspended. This sentence was ordered to run concurrently with Case Nos. CF-2004-1226 and CF-2005-443.
On December 16, 2005, Appellant pled guilty in the District Court of Oklahoma County, Case No. CF-2004-1266, to Count 1 – Possession of a Controlled Dangerous Substance in the Presence of a Child (Cocaine), Count 2 – Possession of a Firearm While Committing a Felony and Count 3 – Possession of a Controlled Dangerous Substance (Marijuana). He was sentenced to ten years suspended on Count 1, five years suspended on Count 2 and one year suspended on Count 3. These sentences were ordered to be served concurrently with each other and with Case Nos. CF-2005-443 and CF-2003-3709.
Appellant also pled guilty December 16, 2005, in Oklahoma County District Court Case No. CF-2005-443 to Using a Vehicle to Facilitate the Intentional Discharge of a Firearm (Drive By Shooting). In this case he was sentenced to ten years suspended to run concurrently with CF-2004-1266 and CF-2003-3709.
On April 3, 2006, the State filed an application to revoke Appellant’s suspended sentences in these three cases. Following a revocation hearing before the Honorable Twyla Mason Gray, District Judge, on May 8, 2007, Appellant’s suspended sentences were revoked in full. Appellant appeals from the revocation of his suspended sentences.
On appeal Appellant raised the following propositions of error:
1. The sentence revoked on Count II in CF-2004-1266 exceeds the original sentence and must be modified.
2. The District Court abused its discretion by excessive revocation of Appellant’s suspended sentences.
The Response filed by the State agrees Appellant was sentenced to a five year suspended sentence on Count 2 in Case No. CF-2004-1266 and that the May 8, 2007, District Court Order Revoking Suspended Sentence incorrectly provides that Appellant is sentenced on Count 2 to ten years instead of five years. The State agrees that the Order Revoking Suspended Sentence in CF-2004-1266 should be corrected to reflect the sentence Appellant received on Count 2 was five years all suspended and that said sentence was revoked in full.
In Appellant’s second proposition of error he argues the District Court abused its discretion by excessive revocation of Appellant’s suspended sentences. We disagree. The decision to revoke a suspended sentence in whole or only in part lies within the discretion of the trial court whose decision will not be disturbed absent an abuse of discretion. Wallace v. State, 1977 OK CR 154, II 7, 562 P.2d 1175. Appellant has not shown the trial judge abused her discretion by revoking Appellant’s suspended sentences in full.
IT IS THEREFORE THE ORDER OF THIS COURT, finding no abuse of discretion, that the revocation of Appellant’s suspended sentence in the District Court of Oklahoma County, is AFFIRMED. However, the District Court Order Revoking Suspended Sentence in CF-2004-1266 must be corrected to reflect the sentence Appellant received on Count 2 was five years and not ten years.
THEREFORE, this matter is REMANDED to the District Court of Oklahoma County for an order nunc pro tunc correcting the Order Revoking Suspended Sentence in full in CF-2004-1266 to reflect five years, and not ten years, revoked on Count 2.
Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2007), the MANDATE is ORDERED issued upon the delivery and filing of this decision. IT IS so ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 4th day of February, 2008.
GARY L. LUMPKIN, Presiding Judge
CHARLES A. JOHNSON, Vice Presiding Judge
CHARLES S. CHAPEL, Judge
ARLENE JOHNSON, Judge
DAVID B LEWIS, Judge
ATTEST: Clerk
Footnotes:
- Okla. Stat. tit. 22 § 18
- Wallace v. State, 1977 OK CR 154, 562 P.2d 1175.
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:
- Wallace v. State, 1977 OK CR 154, II 7, 562 P.2d 1175