Andrell Jackson v The State Of Oklahoma
RE 2012-0848
Filed: Aug. 15, 2013
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Andrell Jackson appealed his conviction for violating the terms of his suspended sentence. The conviction and sentence were upheld in Case No. CF-2010-5469, but the conviction in Case No. CF-2008-5525 was vacated. Judge C. Johnson dissented.
Decision
The revocation of Appellant's suspended sentence in Oklahoma County District Court Case No. CF-2010-5469 is AFFIRMED. The revocation of Appellant's suspended sentence in Oklahoma County District Court Case No. CF-2008-5525 is VACATED and the matter is REMANDED to the District Court for further proceedings consistent with this Order. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANDATE is ORDERED issued upon the filing of this decision.
Issues
- Was there sufficient evidence to identify Appellant as the robber in the new cases?
- Did the trial court abuse its discretion by revoking Appellant's suspended sentence based upon insufficient information?
- Was there any previously imposed suspended sentence in CF-2008-5525 to revoke?
Findings
- The court did not err in affirming the revocation of Appellant's suspended sentence in CF-2010-5469.
- The revocation of Appellant's suspended sentence in CF-2008-5525 is vacated due to the absence of a previously imposed suspended sentence.
- The matter is remanded to the District Court for further proceedings consistent with this order.
RE 2012-0848
Aug. 15, 2013
Andrell Jackson
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
MICHAEL S. RICHIE SMITH, VICE PRESIDING JUDGE:
On April 24, 2009, Appellant, Andrell Jackson, pled guilty to Possession of a Controlled Dangerous Substance in the District Court of Oklahoma County, Case No. CF-2008-5525. Sentencing was deferred for five years with rules and conditions of probation and with 180 days or six months to serve in the Oklahoma County Jail, with credit for time served. In Oklahoma County District Court Case No. CF-2010-5469 Appellant pled guilty on October 5, 2010, to Count 1 – Possession of a Controlled Dangerous Substance and Count 2 – Possession of Proceeds Derived from a Violation of the Uniform Controlled Dangerous Substance Act, AFC. He was sentenced to ten years suspended except for the first one year to do in the Oklahoma County Jail and fined $50.00. Appellant was given credit for time served and the sentence was ordered to run concurrently with CF-2008-5525. Appellant’s deferred sentence in CF-2008-5525 was accelerated on October 5, 2010, and the Acceleration of Deferred Sentence Judgment and Sentence reflects that Appellant was sentenced to one year in the Oklahoma County Jail. This sentence was ordered to be served concurrently with CF-2010-5469. On February 24, 2012, the State filed an application to revoke Appellant’s suspended sentence in CF-2010-5469. The State alleged Appellant violated the terms of his suspended sentence by committing three counts of Robbery with a Firearm as alleged in Case No. CF-2011-6581. The State also filed an application to revoke in CF-2008-5525 on March 20, 2012. Contrary to the language set forth in the Judgment and Sentence, the State’s application states that in CF-2008-5525 Appellant was sentenced to ten years with the first year to serve in the County Jail and the remaining sentence suspended. The violations alleged in CF-2008-5525 were the new crimes committed in CF-2011-6581, three counts of Robbery with a Firearm. Following a revocation hearing on April 17, 2012, the Honorable Ray C. Elliott, District Judge, revoked Appellant’s nine year suspended sentence in each case in full. The sentences were ordered to run concurrently. Appellant did not timely appeal from the revocation of his suspended sentences but was granted a revocation appeal out of time on September 7, 2012, PC 2012-0641. Appellant’s sole proposition of error argues that the trial court abused its discretion by revoking his suspended sentence based upon insufficient information. Appellant argues that the State failed to present sufficient evidence to identify Appellant as the robber in the new cases, that Appellant did not fit the description given by the State’s sole witness and that the identification by the witness was tainted by a suggestive show-up procedure.
The State answers that the identification of Appellant by the witness was sufficient to establish by a preponderance of the evidence that Appellant committed the robbery in violation of his suspended sentences. Violations of a suspended sentence need only be shown by a preponderance of the evidence. Fleming U. State, 1988 OK CR 162, IT 4, 760 P.2d 206, 207. This Court has defined a preponderance of the evidence as that which is of greater weight and, further, which could have been deemed more probably true than not. Cooper U. State, 1979 OK CR 85, II 13, 599 P.2d 419, 422-23, Henderson v. State, 1977 OK CR 238, 119 4-5, 568 P.2d 297, 298. Appellant has not shown that Judge Elliott abused his discretion. A preponderance of the evidence supports Judge Elliott’s ruling. The revocation of Appellant’s suspended sentence in CF-2010-5469 is affirmed.
In CF-2008-5525 the Acceleration of Deferred Sentence Judgment and Sentence does not show that there was a suspended sentence to revoke. The Judgment and Sentence issued October 5, 2010, sentences Appellant to one year in the Oklahoma County Jail. There are references to a nine year suspended sentence in the Plea of Guilty Summary of Facts, in the State’s application to revoke and in Judge Elliott’s order revoking Appellant’s nine year suspended sentence in CF-2008-5525. No objection was made by Appellant to the State’s application to revoke when it was filed or at the revocation hearing. Appellant has not raised an issue in the revocation appeal challenging this issue, but addresses the issue in a footnote stating that [t]here was thus no suspended sentence to revoke in CF-2008-5525. The State answers, in a footnote, that the record demonstrates Appellant received a ten year suspended sentence with all but the first year suspended and, accordingly, Appellant had nine years available for revocation. The record does not show that the State, or the Appellant, made application in the District Court for an order nunc pro tunc. In a revocation appeal this Court reviews the validity of the revocation order executing the previously imposed sentence. See Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013). In CF-2008-5525 the Acceleration of Deferred Sentence Judgment and Sentence does not show any previously imposed suspended sentence; thus, the record presents no suspended sentence to be revoked in CF-2008-5525. The order revoking a suspended sentence in CF-2008-5525 is therefore vacated.
DECISION
The revocation of Appellant’s suspended sentence in Oklahoma County District Court Case No. CF-2010-5469 is AFFIRMED. The revocation of Appellant’s suspended sentence in Oklahoma County District Court Case No. CF-2008-5525 is VACATED and the matter is REMANDED to the District Court for further proceedings consistent with this Order. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANDATE is ORDERED issued upon the filing of this decision.
Footnotes:
- [1] There was thus no suspended sentence to revoke in CF-2008-5525.
- [2] The record demonstrates Appellant received a ten year suspended sentence with all but the first year suspended.
- [3] See Rule 1.2(D)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013).
Oklahoma Statutes citations:
No Oklahoma statutes found.
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:
- Fleming v. State, 1988 OK CR 162, I 4, 760 P.2d 206, 207
- Cooper v. State, 1979 OK CR 85, II 13, 599 P.2d 419, 422-23
- Henderson v. State, 1977 OK CR 238, I 4-5, 568 P.2d 297, 298