Beau Ashley Kifer v State Of Oklahoma

RE 2010-0600

Filed: Jun. 2, 2011

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Beau Ashley Kifer appealed his conviction for four counts of Lewd Molestation. Conviction and sentence were modified, with Counts 1 and 3 reversed and dismissed, while the revocation of Counts 4 and 6 was affirmed. Judge Lumpkin dissented.

Decision

The revocation of Appellant's suspended sentences in Tulsa County District Court Case No. CF-2002-2120 on Counts 4 and 6 is AFFIRMED. The revocation on Counts 1 and 3 is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there a jurisdictional issue regarding the timing of the application to revoke Appellant's suspended sentences on Counts 1 and 3?
• Did the trial court abuse its discretion in revoking Appellant's entire sentence?

Findings

• The trial court lacked jurisdiction to revoke the suspended sentences on Counts 1 and 3, leading to a reversal and dismissal of those counts.
• The revocation of Appellant's suspended sentences on Counts 4 and 6 was affirmed.

RE 2010-0600

Jun. 2, 2011

Beau Ashley Kifer

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

LEWIS, VICE PRESIDING JUDGE: On April 19, 2004, Appellant, Beau Ashley Kifer, pled guilty to four counts of Lewd Molestation in the District Court of Tulsa County, District Court Case No. CF-2002-2120. He was sentenced to five years suspended on each count, with rules and conditions of probation. Counts 1 and 3 were ordered to run concurrent with each other and consecutive with Counts 4 and 6. Counts 4 and 6 were ordered to run concurrent with each other and consecutive with Counts 1 and 3.

The State filed an application to revoke Appellant’s suspended sentence on April 5, 2010. Following a revocation hearing June 2, 2010, the Honorable Tom C. Gillert, District Judge, revoked five years on each count. Appellant appeals from the revocation of his suspended sentences.

In Appellant’s first proposition of error he argues his five-year suspended sentences on Counts 1 and 3 expired on April 18, 2009, and the application to revoke was not filed until April 2010; thus, the District Court had no jurisdiction to hear the issue let alone revoke sentences that had already been completely served and had expired. We agree. A trial court has the judicial power and authority to hear and determine the issue of revocation only if an application to revoke the suspended sentence is filed before the expiration of the sentence. See Bewley v. State, 1987 OK CR 160, ¶ 4, 742 P.2d 29, 31. The application to revoke in this case was filed one year after the expiration of Appellant’s suspended sentence on Counts 1 and 3 and the trial court was without jurisdiction to revoke Appellant’s completed sentences on these counts.

In Appellant’s final proposition of error he argues the revocation of Appellant’s entire sentence was excessive and should be modified. The decision to revoke a suspended sentence in whole or in part is within the sound discretion of the trial court and such decision will not be disturbed absent an abuse thereof. Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565. An ‘abuse of discretion’ has been defined by this Court as a ‘clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application’. Walker v. State, 1989 OK CR 65, ¶ 5, 780 P.2d 1181. Appellant has not shown an abuse of discretion.

DECISION

The revocation of Appellant’s suspended sentences in Tulsa County District Court Case No. CF-2002-2120 on Counts 4 and 6 is AFFIRMED. The revocation on Counts 1 and 3 is REVERSED and REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

OPINION BY: LEWIS, V.P.J.

A. JOHNSON, P.J.: Concur
LUMPKIN, J.: Concurs
C. JOHNSON, J.: Concur
SMITH, J.: Concur

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Footnotes:

1. Bewley v. State, 1987 OK CR 160, IT 4, 742 P.2d 29, 31.
2. Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565.
3. Walker v. State, 1989 OK CR 65, T5, 780 P.2d 1181.
4. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011).

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 1123 (2011) - Lewd Molestation
• Okla. Stat. tit. 22 § 991a (2011) - Sentencing
• Okla. Stat. tit. 22 § 991c (2011) - Revocation of Suspended Sentences
• Okla. Stat. tit. 22 § 976 (2011) - Authority to Revoke
• Okla. Stat. tit. 22 § 1080 (2011) - Judicial Authority

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:

• Bewley v. State, 1987 OK CR 160, I 4, 742 P.2d 29, 31
• Jones v. State, 1988 OK CR 20, I 8, 749 P.2d 563, 565
• Walker v. State, 1989 OK CR 65, T5, 780 P.2d 1181