Sedrick Moltke Frierson v The State Of Oklahoma

RE-2008-1001

Filed: Jan. 6, 2010

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Sedrick Moltke Frierson appealed his conviction for violating probation rules. His conviction and sentence were affirmed, meaning the court agreed with the earlier decision. Judge Lumpkin dissented.

Decision

The revocation of six and one-half years of Appellant's nine and one-half year suspended sentences in Case No. CF-2007-64 in the District Court of Choctaw County is AFFIRMED. However, the matter is REMANDED to the District Court for entry of an order nunc pro tunc changing the written revocation order to state that the balance of Appellant's suspended sentences will be unsupervised, rather than stating the balance will remain under the terms and conditions of probation previously imposed.

Issues

• Was there sufficient evidence to support the revocation of Appellant's suspended sentences due to alleged probation violations?
• Did the trial court err by not modifying the length of the revocation in the interest of justice and rehabilitation?
• Was an order nunc pro tunc required to clarify the assessment of additional court costs and fees in the written revocation order?
• Did the trial court properly state that the remaining balance of Appellant's suspended sentences would be unsupervised probation?

Findings

• the court erred in considering the best interest of justice for the revocation of the suspended sentences
• the order nunc pro tunc is required to clarify that the remaining balance of the suspended sentences is unsupervised
• the revocation of Appellant's six and one-half years suspended sentences is affirmed

RE-2008-1001

Jan. 6, 2010

Sedrick Moltke Frierson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ARLENE JOHNSON, VICE PRESIDING JUDGE: Appellant appeals from the revocation of six and one-half years of his nine and one-half year suspended sentences in Case No. CF-2007-64 in the District Court of Choctaw County, by the Honorable Gary L. Brock, Special Judge. On August 14, 2007, Appellant entered a plea of guilty to two counts of Delivery of Controlled Dangerous Substance. He was sentenced on each count to a term of ten years, with all except the first six months suspended and the sentences ordered to run concurrently.

On July 1, 2008, the State filed an application for revocation of Appellant’s suspended sentences alleging he violated probation by (1) testing positive for and admitting to methamphetamine and marijuana use on 4 occasions; (2) committing the crimes of Possession of Marijuana, Attempting to Elude, DUI, Obstructing a Police Officer, Failing to Display Headlights, Driving Under Suspension, and No Seat Belt as charged in Choctaw County District Court Case No. CF-2008-60; (3) failing to pay probation fees; (4) failing to pay court costs; and (5) failing to attend substance abuse counseling. The hearing on the application to revoke was held before Judge Brock on October 9, 2008. At the conclusion of the evidence and arguments, Judge Brock found Appellant had violated probation and revoked six and one-half years of his nine and one-half year suspended sentences.

Appellant brings this appeal asserting two propositions of error. Appellant first contends the six-and-a-half year revocation must be favorably modified because it was contrary to the best interest of justice and Mr. Frierson’s rehabilitation. Appellant’s second proposition claims an order nunc pro tunc is required to remove charges for additional court costs and fees, which were not to be imposed under the Court’s oral order, from the written order revoking and to clarify that the balance of the suspended sentence is to be served as unsupervised probation.

Appellant’s first proposition is moot. In a revocation proceeding, the trial court only determines whether any of the terms and conditions attached to the probation have been violated, and whether the previously imposed sentence should be executed. Defraffenreid v. State, 1979 OK CR 88, q13, 599 P.2d 1107, 1110; Marutzky v. State, 1973 OK CR 398, 15, 514 P.2d 430, 431. The scope of review in a revocation appeal is limited to the validity of the revocation order to execute the previously imposed sentence. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008). The only relief Appellant can receive in this appeal is reversal of the revocation order and restoration of the liberty he enjoyed under the suspended sentences. However, Appellant cannot be restored to his liberty under the revoked portion of his suspended sentences in this case because he will be serving his concurrent sentence of incarceration in Choctaw County District Court Case No. CF-2008-60. It would be in the best interest of justice for Appellant to serve the six and one-half year revocation in conjunction with his sentence in Case No. CF-2008-60, so that term would not be available for subsequent revocation after his release.

As to Appellant’s second proposition, we do not find that an order nunc pro tunc is required with regard to the costs assessed in the written revocation order. Judge Brock’s oral statement concerning no additional costs refers to the remaining three year balance of Appellant’s suspended sentences. Thus there is no conflicting oral pronouncement to the costs assessed in the written revocation order. The State does confess that an order nunc pro tunc is required to ensure that the remaining three year balance of Appellant’s suspended sentences is unsupervised. Judge Brock’s oral pronouncement clearly states the three year balance will be unsupervised, but the written order states the balance remains under terms and conditions previously imposed, which required supervision.

DECISION
The revocation of six and one-half years of Appellant’s nine and one-half year suspended sentences in Case No. CF-2007-64 in the District Court of Choctaw County is AFFIRMED. However, the matter is REMANDED to the District Court for entry of an order nunc pro tunc changing the written revocation order to state that the balance of Appellant’s suspended sentences will be unsupervised, rather than stating the balance will remain under the terms and conditions of probation previously imposed. 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. Defraffenreid v. State, 1979 OK CR 88, q13, 599 P.2d 1107, 1110;
2. Marutzky v. State, 1973 OK CR 398, 15, 514 P.2d 430, 431.
3. Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008).
4. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009).

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 18 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 21 § 701.8 - Sentences and Punishment
• Okla. Stat. tit. 47 § 11-801(B)(1) - Traffic Regulations

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:

• Defraffenreid v. State, 1979 OK CR 88, 599 P.2d 1107
• Marutzky v. State, 1973 OK CR 398, 514 P.2d 430