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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA ZACHARY GLENN HAYES, ) ) NOT FOR PUBLICATION Appellant, ) ) V. ) No. RE 2009-0080 ) THE STATE OF OKLAHOMA, ) FILED ) IN COURT OF CRIMINAL APPEALS Appellee. ) STATE OF OKLAHOMA FEB 1 9 2010 SUMMARY OPINION MICHAEL S. RICHIE CLERK A. JOHNSON, Vice Presiding Judge: Appellant, Zachary Glenn Hayes, pled guilty November 14, 2007, to Rape by Instrumentation in Garfield County District Court Case No. CF-2007-446. Appellant was sentenced to twenty years suspended with rules and conditions of probation. The State filed an application to revoke Appellant’s suspended sentence on June 5, 2008. Following a revocation hearing January 21, 2009, the Honorable Ronald G. Franklin, District Judge, revoked Appellant’s suspended sentence in full and assessed $625.55 in jail costs. Appellant appeals from the revocation of his suspended sentence. On appeal Appellant argues in his first proposition of error that the trial court abused its discretion in assessing additional costs of incarceration upon the revocation of Appellant’s suspended sentence. The State answers that it agrees that imposing incarceration fees in this case runs contrary to a prior unpublished decision by this Court, Huff U. State, RE 2002-174 (Okl.Cr. November 6, 2002). Costs of incarceration are authorized by Section 979a(A) of Title 22 and may be assessed only “upon conviction or receiving a deferred sentence”. We will not reconsider that decision here. The consequence of a judicial revocation proceeding is to execute a penalty previously imposed in the Judgment and Sentence. Marutzky v. State, 1973 OK CR 398, IT 5, 514 P.2d 430. Appellant also argues that the District Court’s revocation of his suspended sentence in full was excessive under the facts and should be modified in the interests of justice. 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 v. State, 1988 OK CR 20, 11 8, 749 P.2d 563. Finding no abuse of discretion, we decline to modify Judge Franklin’s decision to revoke Appellant’s suspended sentence in full. DECISION The revocation of Appellant’s suspended sentence in Garfield County District Court Case No. CF-2007-446 is AFFIRMED but the order directing the defendant pay $626.55 jail costs entered at the revocation hearing 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 filing of this decision. 2 REVOCATION APPEAL FROM THE DISTRICT COURT OF GARFIELD COUNTY, THE HONORABLE RONALD G. FRANKLIN, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL BRIAN LOVELL TERRY J. HULL 300 W. Cherokee, Suite 102 Appellate Defense Counsel Enid, OK 73701 P.O. Box 926 COUNSEL FOR APPELLANT Norman, Oklahoma 73070 COUNSEL FOR APPELLANT MIKE FIELDS W. A. DREW EDMONDSON District Attorney’s Office Attorney General of Oklahoma Garfield County Courthouse WILLIAM R. HOLMES 114 W. Broadway Assistant Attorney General Enid, OK 73701 313 N.W. 21st Street COUNSEL FOR THE STATE Oklahoma City, Oklahoma 73105 COUNSEL FOR THE STATE OPINION BY: A. JOHNSON, V.P.J. C. JOHNSON, P.J.: Concur LUMPKIN, J.: Concur in Results CHAPEL, J.: Concur LEWIS, J.: Concur RE 3

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