Therman Krishawn Kemp v State Of Oklahoma

RE-2008-753

Filed: Feb. 8, 2010

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Therman Krishawn Kemp appealed his conviction for possessing marijuana and driving while his license was revoked. He was sentenced to ten years for possession of marijuana and thirty days for driving with a revoked license, but both sentences were suspended, meaning he didn't have to go to jail as long as he followed certain rules during probation. After he violated his probation, the court decided to take back his suspended sentences. Kemp argued that the court made a mistake when they revoked part of his sentence for the driving while revoked charge and that the decision was too harsh. The court agreed that they shouldn't have revoked that part of the sentence because he had already finished serving it, so they canceled that part of the decision. However, the court upheld the revocation of his other sentences, stating that he didn't follow the rules of his probation, and they found no unreasonable mistake made by the previous judge. Kemp's appeal was mostly unsuccessful, but part of the revocation was removed because he had already served that sentence. No judge disagreed with this decision.

Decision

The revocation of Appellant's suspended sentences in Oklahoma County Case Nos. CF-2007-802 and CF-2007-4931 is AFFIRMED. The portion of the District Court's order revoking Appellant's suspended sentence for Count 2 in Oklahoma County Case No. CF-2007-802 is VACATED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was the trial court's written order revoking Appellant's suspended sentence for Count 2 in Oklahoma County Case No. CF-2007-802 incorrect and requiring an order nunc pro tunc?
• Did the District Court abuse its discretion by revoking Appellant's suspended sentences in full?

Findings

• The trial court erred in revoking Appellant's suspended sentence for Count 2 in Oklahoma County Case No. CF-2007-802, requiring a vacation of that portion of the order.
• The District Court did not abuse its discretion by revoking Appellant's suspended sentences in full.

RE-2008-753

Feb. 8, 2010

Therman Krishawn Kemp

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, JUDGE:

On March 29, 2007, Appellant, represented by counsel, entered guilty pleas to charges of Count 1, Possession of Marijuana and Count 2, Driving While Privilege Revoked, both After Former Conviction of a Felony, in Oklahoma County Case No. CF-2007-802. Appellant was sentenced to ten (10) years for Count 1 and thirty (30) days for Count 2, all sentences suspended, subject to terms and conditions of probation.

That same date, Appellant entered guilty pleas to charges of Count 1, Possession of a Controlled Dangerous Substance (PCP), Count 2, Possession of Marijuana, Count 3, Driving Under the Influence and Count 4, Driving While Privilege Revoked, all After Former Conviction of Two or More Felonies, in Oklahoma County Case No. CF-2007-4931. Appellant was sentenced to ten (10) years each for Counts 1 and 2, one (1) year for Count 3 and thirty (30) days for Count 4, all sentences suspended, subject to terms and conditions of probation. The sentences were ordered to run concurrently.

On May 23, 2008, the State filed an Application to Revoke Suspended Sentence, alleging Appellant violated the terms and conditions of his probation. An Amended Application to Revoke Suspended Sentence was filed on June 12, 2008, alleging additional probation violations. On July 30, 2008, after a hearing on the State’s application, the Honorable Ray C. Elliott, District Judge, revoked Appellant’s suspended sentences in full.

From this judgment and sentence Appellant appeals and raises the following issues:
1. The trial court’s written order revoking Appellant’s suspended sentence for Count 2 in Oklahoma County Case No. CF-2007-802 was incorrect and requires issuance of an order nunc pro tunc; and
2. The District Court abused its discretion by revoking Appellant’s suspended sentences in full.

The order revoking Appellant’s suspended sentences in full is AFFIRMED. The portion of the revocation order revoking Appellant’s suspended sentence for Count 2 in Case No. CF-2007-802 is VACATED.

Both parties agree that at the time the State filed its Application to Revoke Appellant’s suspended sentence for Count 2 of Oklahoma County Case No. CF-2007-802, Appellant had already served the probationary sentence for that offense. The District Court had no authority to revoke a suspended sentence that had been fully served. Appellant requests issuance of an order nunc pro tunc to correct the error. However, since the District Court had no authority to revoke an executed sentence, the appropriate remedy is to vacate the incorrect portion of the order revoking Appellant’s suspended sentence.

We find no merit in Appellant’s claim that revocation of his suspended sentences was excessive. The standard of review here is abuse of discretion. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565; Crowels v. State, 1984 OK CR 29, ¶ 6, 675 P.2d 451, 453; Sparks v. State, 1987 OK CR 247, ¶ 5, 745 P.2d 752. Despite being given suspended sentences for his numerous offenses, Appellant failed and refused to take advantage of the District Court’s leniency, choosing instead to violate the terms and conditions of his probation. We find nothing in the record presented to this Court indicating that the District Court abused its discretion in revoking Appellant’s suspended sentences in full.

DECISION

The revocation of Appellant’s suspended sentences in Oklahoma County Case Nos. CF-2007-802 and CF-2007-4931 is AFFIRMED. The portion of the District Court’s order revoking Appellant’s suspended sentence for Count 2 in Oklahoma County Case No. CF-2007-802 is VACATED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 22 § 991a.
2. Jones v. State, 1988 OK CR 20, 8, 749 P.2d 563, 565.
3. Crowels v. State, 1984 OK CR 29, 6, 675 P.2d 451, 453.
4. Sparks v. State, 1987 OK CR 247, 5, 745 P.2d 752.
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1283 (2011) - Possession of Controlled Dangerous Substances
• Okla. Stat. tit. 21 § 641 (2011) - Driving While Privilege Revoked
• Okla. Stat. tit. 21 § 701.8 (2011) - Sentence Modification Due to Prior Conviction
• Okla. Stat. tit. 22 § 983 (2011) - Authority of Court to Revoke 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:

• Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565
• Crowels v. State, 1984 OK CR 29, ¶ 6, 675 P.2d 451, 453
• Sparks v. State, 1987 OK CR 247, ¶ 5, 745 P.2d 752