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FILED IN THE COURT OF CRIMINAL APPEALS OF THE SY COURT OF CORNAHOMAS STATE OF OKLAHOMA MAY 2 6 2011 MICHAEL S. RICHIE CLERK BEAU ASHLEY KIFER, ) ) NOT FOR PUBLICATION Appellant, ) ) V. ) No. RE 2010-0600 ) STATE OF OKLAHOMA, ) ) Appellee.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, IT 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, I 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, T5, 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 2 Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision. REVOCATION APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, THE HONORABLE TOM C. GILLERT, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL CHRIS GAULT CURTIS M. ALLEN Public Defender’s Office Assistant Public Defender 423 South Boulder, Suite 300 Tulsa County Public Defender’s Office Tulsa, Oklahoma 74103 423 S. Boulder Ave., Suite 300 COUNSEL FOR APPELLANT Tulsa, Oklahoma 74103 COUNSEL FOR APPELLANT ERIK GRAYLESS E. SCOTT PRUITT District Attorney’s Office Attorney General of Oklahoma Tulsa County Courthouse THEODORE M. PEEPER 500 South Denver Assistant Attorney General Tulsa, Oklahoma 74103 313 N.W. 21st Street COUNSEL FOR THE STATE Oklahoma City, Oklahoma 73105 COUNSEL FOR THE STATE OPINION BY: LEWIS, V.P.J. A. JOHNSON, P.J.: Concur LUMPKIN, J.: Concurs C. JOHNSON, J.: Concur SMITH, J.: Concur RA 3

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