Adrian Smith v The State Of Oklahoma

RE 2008-0961

Filed: Aug. 27, 2009

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Adrian Smith appealed his conviction for robbery and burglary. The conviction and sentence were set for ten years, but the court needed to correct it to nine years. Judge Norman revoked Adrian's suspended sentence in full. Judge Lumpkin disagreed with the full revocation.

Decision

The revocation of Appellant's suspended sentences in Muskogee County District Court Case Nos. CF-2006-776, CF-2006-789, and CF-2006-879 is AFFIRMED but the matter is REMANDED for an order nunc pro tunc correcting the Judgment and Sentence in each case to show nine years revoked in full and not ten years revoked in full. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• was there an error in the trial court's revocation sentence length?
• did the Appellant receive due process during the revocation hearing?
• was the trial court's decision to revoke the sentences in full an abuse of discretion?

Findings

• the court erred in revoking the sentences for ten years instead of nine years
• there was no due process violation regarding the written statement of evidence for revocation
• there was no abuse of discretion in the revocation of the sentences in full

RE 2008-0961

Aug. 27, 2009

Adrian Smith

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, Presiding Judge: Appellant, Adrian Smith, pled guilty February 15, 2007, in Muskogee County District Court Case No. CF-2006-776 to Robbery With A Weapon, in Case No. CF-2006-789 to Count 1 – Robbery With A Weapon and Count 2 – Knowingly Concealing Stolen Property, and in Case No. CF-2006-879 to Burglary In The Second Degree. Appellant was sentenced to ten years on each count of each case with all of the sentences ordered to run concurrently. The sentences were ordered to be suspended following a one year judicial review if Appellant successfully completed a substance abuse program. Appellant was released February 7, 2008, with the balance of his sentences suspended.

The State filed an application to revoke Appellant’s suspended sentence on September 3, 2008. Following a revocation hearing October 2, 2008, the Honorable Michael Norman, District Judge, revoked Appellant’s suspended sentences in full, ten years. Appellant appeals from the revocation of his suspended sentences.

On appeal Appellant argues in his first proposition of error that the trial court erred by revoking the sentences for ten years. The State agrees that the District Court should issue an order nunc pro tunc correcting the Judgment and Sentence as Appellant only had nine years remaining on his suspended sentences, not ten years.

In Appellant’s second proposition of error he argues he was denied due process of law because the District Court failed to make a written statement of the evidence to support the revocation and reasons why revocation is preferable to continued probation. The State answers that Appellant was appropriately apprised of the reasons for the revocation of his suspended sentences and that no due process violation occurred. We agree. Appellant was sufficiently apprised of the grounds upon which his suspended sentences were revoked. See Mack v. State, 1981 OK CR 160, IT 4, 637 P.2d 1262. Appellant has not shown that he has been denied due process.

Appellant’s final proposition of error argues the revocation of the sentences in full was excessive. 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. Jones U. State, 1988 OK CR 20, IT 8, 749 P.2d 563. Finding no abuse of discretion, we decline to modify Judge Norman’s decision to revoke Appellant’s suspended sentences in full.

DECISION

The revocation of Appellant’s suspended sentences in Muskogee County District Court Case Nos. CF-2006-776, CF-2006-789, and CF-2006-879 is AFFIRMED but the matter is REMANDED for an order nunc pro tunc correcting the Judgment and Sentence in each case to show nine years revoked in full and not ten years revoked in full. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 791.
2. See Mack v. State, 1981 OK CR 160, IT 4, 637 P.2d 1262.
3. Jones v. State, 1988 OK CR 20, IT 8, 749 P.2d 563.
4. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 791 - Robbery With A Weapon
• Okla. Stat. tit. 21 § 1703 - Knowingly Concealing Stolen Property
• Okla. Stat. tit. 21 § 1436 - Burglary in the Second Degree
• Okla. Stat. tit. 22 § 982 - Revocation of Suspended Sentences
• Okla. Stat. tit. 22 § 983 - Due Process in 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:

• Mack v. State, 1981 OK CR 160, I 4, 637 P.2d 1262
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563