William John Myers v The State of Oklahoma

RE-2008-880

Filed: Oct. 29, 2009

Not for publication

Prevailing Party: William John Myers

Summary

William John Myers appealed his conviction for two Second Degree Arson offenses. Conviction and sentence were affirmed for one case, but reversed for the other. Judge Johnson dissented on the second case.

Decision

The September 3, 2008, final order of the District Court of Nowata County, that revoked in full the order partially suspending execution of that sentence imposed in Case No. CF-2003-164 against WILLIAM JOHN MYERS, Appellant, is AFFIRMED; however, the order pronounced in CF-2003-167 revoking the suspension order in that case is hereby REVERSED AND REMANDED WITH INSTRUCTIONS that the District Court on remand enter such orders as necessary to clarify that the suspension order in CF-2003-167 remains in full force and effect. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), MANDATE IS ORDERED ISSUED upon the filing of this decision.

Issues

• whether the trial court had jurisdiction to revoke the suspended sentence in CF-2003-167
• did the trial court abuse its discretion in revoking the suspended sentence in CF-2003-164

Findings

• the court erred in revoking the suspension order in CF-2003-167 due to lack of jurisdiction
• the revocation order in CF-2003-164 requires no reversal nor modification

RE-2008-880

Oct. 29, 2009

William John Myers

Appellant

v

The State of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, JUDGE:

In the District Court of Nowata County, Case Nos. CF-2003-164 and CF-2003-167, Appellant, William John Myers, while represented by counsel, entered pleas of guilty to two Second Degree Arson offenses as alleged in each case. On July 23, 2004, pursuant to a plea agreement, the Honorable Janice P. Dreiling, District Judge, sentenced Appellant in each case to a concurrent term of twenty (20) years imprisonment, with all but the first seven (7) years suspended under written conditions of probation. On September 3, 2008, following an evidentiary hearing, the Honorable Carl G. Gibson, Associate District Judge, found that Appellant had violated his probation and in both cases revoked the suspension orders in full. Appellant now appeals the final orders of revocation, and he raises the following propositions of error:

I. The revocation of Appellant’s suspended sentence in CF-2003-167 should be reversed because the trial court lacked jurisdiction to revoke.

II. Under all the facts and circumstances, the trial court abused its discretion in revoking in full the suspended sentence in CF-2003-164.

Having thoroughly considered Appellant’s propositions of error and the entire record before the Court, including the original record, transcripts, and briefs of the parties, the Court FINDS reversal is required as concerns the revocation order in Case No. CF-2003-167 but that the revocation order entered in Case No. CF-2003-164 requires neither reversal nor modification.

In Proposition I, Appellant notes the State’s failure to file any petition seeking revocation of Appellant’s suspended sentence in CF-2003-167. The district attorney’s filing of a petition setting forth the grounds for revocation has been made a prerequisite for the revocation of any suspended sentence by 22 O.S.Supp.2005, § 991b.¹ Because no such petition was filed in CF-2003-167, Appellant concludes that the District Court was without jurisdiction to revoke its suspension order in that particular case. The State’s Answer Brief acknowledges this error and correctly observes that reversal is required.

In Proposition II, Appellant claims an abuse of discretion in the District Court having revoked the suspension order in CF-2003-164 in its entirety. We have reviewed those circumstances identified by Appellant that he argues mitigate against revocation in full; however, we find such circumstances to be insufficient to demonstrate an abuse of discretion due to one of the proven grounds for revocation being Appellant’s commission in the State of Kansas of a subsequent felony offense.³

DECISION

The September 3, 2008, final order of the District Court of Nowata County, that revoked in full the order partially suspending execution of that sentence imposed in Case No. CF-2003-164 against WILLIAM JOHN MYERS, Appellant, is AFFIRMED; however, the order pronounced in CF-2003-167 revoking the suspension order in that case is hereby REVERSED AND REMANDED WITH INSTRUCTIONS that the District Court on remand enter such orders as necessary to clarify that the suspension order in CF-2003-167 remains in full force and effect. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2009), MANDATE IS ORDERED ISSUED upon the filing of this decision.

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Footnotes:

1. 22 O.S.Supp.2005, § 991b.
2. See Walker v. State, 1989 OK CR 65, ¶ 7, 780 P.2d 1181, 1183.
3. Mack v. State, 1981 OK CR 160, ¶ 3, 637 P.2d 1262, 1264.
4. Gibson v. State, 1975 OK CR 40, ¶ 3, 532 P.2d 853, 854.

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991b (Supp. 2005) - Revocation of suspended sentence
• Okla. Stat. tit. 22 § 991b(A) (Supp. 2005) - Petition for revocation
• Okla. Stat. tit. 21 § 701.8 (2011) - Arson in the second degree

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:

• Walker v. State, 1989 OK CR 65, I 7, 780 P.2d 1181, 1183
• Mack v. State, 1981 OK CR 160, I 3, 637 P.2d 1262, 1264
• Gibson v. State, 1975 OK CR 40, II 3, 532 P.2d 853, 854