Lorance Ridell Dever v The State Of Oklahoma

RE 2011-0359

Filed: Sep. 27, 2012

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Lorance Ridell Dever appealed his conviction for Assault and Battery with a Deadly Weapon. His conviction and sentence were for eight years, with one year in jail, and the rest suspended for probation. The State of Oklahoma tried to revoke his suspended sentence due to new charges of Murder and Shooting With Intent to Kill. During the hearing, the court found that Dever violated his probation rules and revoked his remaining seven years. Dever claimed the court lost the right to revoke his sentence because the hearing didn't happen within twenty days of his not-guilty plea, as required by law. However, the court found he did not show he was aware of or waived this time limit. The Oklahoma Court of Criminal Appeals decided to reverse the revocation of Dever's suspended sentence and ordered the lower court to cancel the revocation. Judge Lumpkin wrote the opinion, and all other judges agreed.

Decision

The revocation of Appellant's suspended sentence in McCurtain County District Court Case No. CF-2006-76 is REVERSED AND REMANDED to the District Court with instructions to VACATE the order revoking Appellant's suspended sentence. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there a loss of jurisdiction to revoke Appellant's suspended sentence due to the delay in the revocation hearing?
• Did the Appellant waive the 20-day Rule under Section 991b(A) of Title 22 by acquiescing to the delay?
• Was the Appellant properly advised of the 20-day Rule prior to the revocation hearing?
• Was there sufficient evidence to establish that the Appellant or his counsel was present when the hearing was rescheduled?
• Did the record show that the Appellant requested any extension of time during the delay period?

Findings

• The trial court erred in determining that Appellant acquiesced in the delay of the revocation hearing.
• The revocation of Appellant's suspended sentence is reversed and remanded with instructions to vacate the order revoking Appellant's suspended sentence.

RE 2011-0359

Sep. 27, 2012

Lorance Ridell Dever

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, Judge:

Appellant, Lorance Ridell Dever, pled guilty March 6, 2006, in the District Court of McCurtain County, Case No. CF-2006-76, to Assault and Battery with a Deadly Weapon. He was sentenced to eight years, all suspended except one year in the McCurtain County Jail, with rules and conditions of probation. The State filed a motion to revoke Appellant’s suspended sentence on March 9, 2010, alleging Appellant committed the new crimes of Murder in the First Degree and Shooting With Intent to Kill. Following a hearing on April 25, 2011, the Honorable Willard Driesel, District Judge, found Appellant violated the rules and conditions of probation and revoked the balance of Appellant’s suspended sentence, seven years. Appellant appeals from the revocation of his suspended sentence.

Appellant’s sole proposition of error is that the trial court lost jurisdiction to revoke Appellant’s suspended sentence when a revocation hearing was not held within twenty days of arraignment. The State answers that Appellant acquiesced in the delay in the revocation hearing thereby waiving the 20-day Rule under Section 991b(A) of Title 22. Section 991b(A) requires a revocation hearing to be held within twenty days after the entry of the plea of not guilty to the petition unless waived by both the State and the defendant. In Grimes v. State, 2011 OK CR 16, I 7, 251 P.3d 749, we held that a defendant cannot acquiesce in the delay of a hearing or participate in the continuance of a hearing and then claim an entitlement to relief because the District Court did not abide by the 20-day time limitation. In the present case, the revocation hearing was held a year after Appellant entered a plea of not guilty. The record is void of a waiver of the 20-day Rule. The record does not show Appellant was even advised of the 20-day Rule. While the revocation hearing was originally timely set, the hearing was rescheduled outside of the twenty days without explanation. The record does not show that Appellant or his counsel was present when the hearing was rescheduled or that Appellant requested any extension of time during this one-year period. Based upon this record, we cannot find Appellant acquiesced in the delay of the revocation hearing.

DECISION

The revocation of Appellant’s suspended sentence in McCurtain County District Court Case No. CF-2006-76 is REVERSED AND REMANDED to the District Court with instructions to VACATE the order revoking Appellant’s suspended sentence. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012), the MANDATE is ORDERED issued upon the filing of this decision.

REVOCATION APPEAL FROM THE DISTRICT COURT OF MCCURTAIN COUNTY, THE HONORABLE WILLARD DRIESEL, DISTRICT JUDGE

APPEARANCES AT TRIAL

ELIZABETH GRIFFITH
ATTORNEY AT LAW
113 N. CENTRAL AVE.
IDABEL, OKLAHOMA 74745
COUNSEL FOR APPELLANT

JAMES H. LOCKARD
DEPUTY DIVISION CHIEF
OKLAHOMA INDIGENT DEFENSE SYSTEM
P.O. BOX 926
NORMAN, OKLAHOMA 73070
COUNSEL FOR APPELLANT

APPEARANCES ON APPEAL

JOHNNY LOARD
ASSISTANT DISTRICT ATTORNEY
MCCURTAIN COUNTY COURTHOUSE
P. O. BOX 1378
IDABEL, OKLAHOMA 74745
COUNSEL FOR THE STATE

E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA
313 N.W. 21st STREET
OKLAHOMA CITY, OKLAHOMA 73105
COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, J.
A. JOHNSON, P.J.: CONCUR
LEWIS, V.P.J.: CONCUR
C. JOHNSON, J.: CONCUR
SMITH, J.: CONCUR

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Footnotes:

1. Section 991b(A) of Title 22.
2. Grimes v. State, 2011 OK CR 16, 7, 251 P.3d 749.
3. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2012).

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991b(A) (2011) - Revocation hearing requirements

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:

• Grimes v. State, 2011 OK CR 16, I 7, 251 P.3d 749