Zachary Glenn Hayes v The State Of Oklahoma

RE 2009-0080

Filed: Feb. 19, 2010

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Zachary Glenn Hayes appealed his conviction for Rape by Instrumentation. His conviction and sentence were originally for twenty years, which were suspended with rules and conditions of probation. The court later revoked his suspended sentence and made him pay $625.55 in jail costs. Hayes argued that it was unfair to add these costs and that revoking his entire suspended sentence was too harsh. The court found no abuse of discretion and agreed the costs shouldn’t have been added based on previous decisions. The opinion affirmed the revocation of his suspended sentence but canceled the jail costs. Judge Lumpkin disagreed slightly.

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.

Issues

• Was there an abuse of discretion in assessing additional costs of incarceration upon the revocation of Appellant's suspended sentence?
• Did the trial court's revocation of Appellant's suspended sentence in full constitute an excessive penalty under the facts?

Findings

• The court erred in assessing additional costs of incarceration upon the revocation of Appellant's suspended sentence.
• The decision to revoke Appellant's suspended sentence in full was not an abuse of discretion.

RE 2009-0080

Feb. 19, 2010

Zachary Glenn Hayes

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

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 v. 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, ¶ 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, ¶ 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 to 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.

Click Here To Download PDF

Footnotes:

1. Huff v. State, RE 2002-174 (Okl.Cr. November 6, 2002).
2. Okla. Stat. tit. 22 § 979a(A).
3. Marutzky v. State, 1973 OK CR 398, ¶ 5, 514 P.2d 430.
4. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563.
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010).

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 979a(A) - Costs of incarceration
• Okla. Stat. tit. 21 § 701.8 - Rape by instrumentation
• Okla. Stat. tit. 22 § 991a - Revocation of suspended sentence
• Okla. Stat. tit. 21 § 141 - Penalty for rape

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:

• Huff v. State, RE 2002-174 (Okl.Cr. November 6, 2002)
• Marutzky v. State, 1973 OK CR 398, I 5, 514 P.2d 430
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563