Dustin Loyal Davenport v The State Of Oklahoma
RE-2011-249
Filed: Feb. 28, 2012
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Dustin Loyal Davenport appealed his conviction for Manslaughter in the First Degree and for causing an accident while driving under the influence. His original sentence was seven years in prison for the manslaughter charge and five years for the DUI charge, but both sentences were suspended, meaning he didn't have to go to prison unless he broke the rules of his probation. Later, the State said that Davenport had violated his probation by drinking alcohol and going to places where alcohol was sold. The court decided to take away his suspended sentence completely. Davenport then appealed this decision. In his appeal, Davenport argued that his violations were "technical" and should not have led to a full revocation of his probation. However, the court ruled that the State could choose how to handle the violations, and in this case, they decided to revoke his probation entirely. Davenport had also argued that the court made a mistake because he wasn’t driving drunk during the accident and that the accident happened due to a stop sign not being visible and the other person involved not wearing a seatbelt. The court agreed with Davenport that revoking his whole sentence was an extreme measure, and it decided instead to change the order to time already served. So, instead of going back to prison, he was put back on probation for the rest of his sentence. In conclusion, the court modified Davenport's original punishment to reflect the time he had already served and allowed him to return to probation. The court affirmed the other parts of the original order. Judge Smith dissented, meaning he disagreed with the decision made by the majority of the judges.
Decision
The revocation order of the District Court of Oklahoma County revoking Dustin Loyal Davenport's suspended sentence in Case No. CF-2006-651 is hereby MODIFIED to time served. Davenport is to be returned to probation for the remainder of his sentence and remain subject to further revocation proceedings for any other violations of the terms of his probation. The District Court shall therefore, within fifteen (15) days of the issuance of mandate, enter an Amended Revocation Order consistent with this decision. The Amended Revocation Order shall revoke an amount of time equivalent to that which Davenport has served to that point under the District Court's original revocation order. Upon entering the Amended Revocation Order, the District Court shall return Davenport to probation. As modified, the revocation order is in all other respects AFFIRMED. 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. Upon receipt of this MANDATE, the District Court is ORDERED to notify the Oklahoma Department of Corrections of the sentence modification in the Amended Revocation Order.
Issues
- Was there an error in overruling Davenport's motion to dismiss based on the nature of his probation violations?
- Did the District Court abuse its discretion in revoking Davenport's suspended sentence in full?
- Was the evidence sufficient to support the revocation given the circumstances surrounding the accident?
Findings
- the court erred
- the revocation of the suspended sentence in full was an abuse of discretion
- the revocation order is modified to time served
- Davenport is to be returned to probation for the remainder of his sentence
- the original revocation order is affirmed in all other respects
RE-2011-249
Feb. 28, 2012
Dustin Loyal Davenport
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
MICHAEL S. RICHIE C. JOHNSON, JUDGE:
On October 17, 2008, Dustin Loyal Davenport pled guilty to Manslaughter in the First Degree, Count I, and Causing an Accident Resulting in Great Bodily Injury While Driving Under the Influence, Count II, in Oklahoma County District Court Case No. CF-2006-651. Davenport was sentenced to seven years incarceration on Count I, and five years incarceration on Count II, all suspended. Both counts were ordered to run concurrently.
On September 21, 2010, the State filed an application to revoke Davenport’s suspended sentence. The State alleged Davenport had violated the terms of his probation by possessing and consuming alcohol and visiting places where alcohol is dispensed, used or sold, and by going places where the main item for sale or use is alcohol. On March 31, 2011, the District Court revoked Davenport’s suspended sentence in full. From that order of revocation, Davenport has perfected this appeal.
In his first assignment of error, Davenport asserts the trial court erred in overruling his motion to dismiss. Specifically, Davenport argues his conduct constituted technical violations of his probation, and as such, should have been handled through Department of Corrections sanctions under 22 O.S.Supp.2005, § 991b(B), and not through revocation proceedings in the District Court as set forth in 22 O.S.Supp.2005, § 991b(A). Davenport asserts the Legislature made its intent clear in the 2005 amendment to § 991b that technical violations of probation were to be treated differently than non-technical violations. Thus, Davenport concludes, the District Court erred in not finding the new subsection B to be mandatory for technical violations of probation.
We disagree. The 2005 amendment to § 991b does not prohibit the State’s use of subsection A for technical probation violations. We find that it remains the choice of the State as to which subsection to utilize for violations of probation. What constitutes a technical violation in one case may not constitute a technical violation in another case. We find that the Legislature’s intent in the amended statute was to provide the State and the Department of Corrections an option of utilizing sanctions, short of revocation, against probationers for technical violations in appropriate cases.
In his final assignment of error, Davenport argues the District Court abused its discretion in revoking his suspended sentence in full. Based on the facts of this case, we agree. A District Court’s decision to revoke a suspended sentence, in whole or in part, is reviewable under the abuse of discretion standard. Davenport was not driving a vehicle while intoxicated. There was no evidence Davenport was committing a crime on the evening of the accident. It was undisputed the proximate cause of the accident was the obstructed stop sign and the failure of the proper authorities to post pre-advance warning signs. The evidence was also that the decedent was not wearing a seatbelt. In conclusion, while Davenport was in violation of Special Condition K of the terms of his probation, there was no evidence Davenport’s conduct was a contributing factor to the tragic accident. Based on the facts of this case, we FIND the order revoking the suspended sentence in full was an abuse of discretion, and should be MODIFIED to time served.
DECISION
The revocation order of the District Court of Oklahoma County revoking Dustin Loyal Davenport’s suspended sentence in Case No. CF-2006-651 is hereby MODIFIED to time served. Davenport is to be returned to probation for the remainder of his sentence and remain subject to further revocation proceedings for any other violations of the terms of his probation. The District Court shall therefore, within fifteen (15) days of the issuance of mandate, enter an Amended Revocation Order consistent with this decision. The Amended Revocation Order shall revoke an amount of time equivalent to that which Davenport has served to that point under the District Court’s original revocation order. Upon entering the Amended Revocation Order, the District Court shall return Davenport to probation. As modified, the revocation order is in all other respects AFFIRMED.
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. Upon receipt of this MANDATE, the District Court is ORDERED to notify the Oklahoma Department of Corrections of the sentence modification in the Amended Revocation Order.
Footnotes:
- 22 O.S.Supp.2005, § 991b(B)
- 22 O.S.Supp.2005, § 991b(A)
- Coddington v. State, 2006 OK CR 34, I56, 142 P.3d 437, 452
- Hampton U. State, 2009 OK CR 4, 203 P.3d 179, 182
- 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(B) - Probation Violations
- Okla. Stat. tit. 22 § 991b(A) - Probation Violations
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:
- Coddington v. State, 2006 OK CR 34, I56, 142 P.3d 437, 452.
- Hampton U. State, 2009 OK CR 4, 203 P.3d 179, 182.