Chief Allen Weston v The State Of Oklahoma

RE 2013-0850

Filed: Aug. 11, 2014

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Chief Allen Weston appealed his conviction for Domestic Assault and Battery by Choking. Conviction and sentence were affirmed but the court instructed to modify the sentence to give credit for the ninety days served in jail. Judge Smith dissented.

Decision

The revocation of Appellant's suspended sentence in Ottawa County District Court Case No. CF-2011-27 is AFFIRMED but the matter is REMANDED to the District Court with instructions to modify the sentence to give credit for the ninety days served during the period of the suspended sentence. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there an error in the sentencing due to the omission of credit for time served during the probationary period?
• Did the State correctly acknowledge that Appellant is entitled to credit for the time served in the County Jail?
• Was the legal impact of not crediting Appellant consistent with the maximum sentence allowed for his crime?
• Did the revocation judge find sufficient grounds for revoking Appellant's suspended sentence based on the stipulated violations?

Findings

• The revocation of Appellant's suspended sentence is affirmed.
• The matter is remanded to the District Court with instructions to modify the sentence to give credit for the ninety days served during the period of the suspended sentence.

RE 2013-0850

Aug. 11, 2014

Chief Allen Weston

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

MICHAEL S. RICHIE LUMPKIN, JUDGE:

Appellant, Chief Allen Weston, pled guilty on February 16, 2011, in Ottawa County District Court Case No. CF-2011-27 to Domestic Assault and Battery by Choking. He was sentenced to three years imprisonment to be served in the custody of the Department of Corrections, all suspended with rules and conditions of probation, except for ninety days to be served in the Ottawa County Jail, and with credit for time served from January 23, 2011. He was also fined $500.00.

The State filed a motion to revoke Appellant’s suspended sentence on December 9, 2011, alleging Appellant (1) was in arrears in paying fines and costs; (2) failed to show up for court as ordered; and (3) failed to provide proof of attendance at the required program and was terminated from the program for nonattendance. A revocation hearing was held on August 23, 2013, before the Honorable William Culver, Special Judge. Appellant stipulated to the State’s allegations in the motion to revoke. Judge Culver found Appellant had violated the rules and conditions of probation as alleged and revoked Appellant’s suspended sentence in full with credit from June 1, 2013.

Appellant appeals from the revocation of his suspended sentence. Appellant’s sole proposition of error on appeal is that his original sentence was impermissibly extended by the Judgment and Sentence on the motion to revoke the suspended sentence because the Judgment and Sentence omitted credit for the ninety days previously served. The State agrees that Appellant is entitled to credit for the time he served in the County Jail during his probationary period. The State answers that because the maximum sentence of incarceration that could be imposed for Appellant’s crime was limited to three years, 21 O.S.Supp.2010, § 644(I), that the legal impact of not crediting Appellant with the three months served in the county jail pursuant to the conditions of his suspended sentence was to impose a penalty exceeding that which the Legislature had annexed to the crime. We agree. See Hemphill v. State, 1988 OK CR 7, IT 9, 954 P.2d 148.

DECISION

The revocation of Appellant’s suspended sentence in Ottawa County District Court Case No. CF-2011-27 is AFFIRMED but the matter is REMANDED to the District Court with instructions to modify the sentence to give credit for the ninety days served during the period of the suspended sentence. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. Okla. Stat. tit. 21 § 644(I)
2. Hemphill v. State, 1988 OK CR 7, IT 9, 954 P.2d 148
3. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2014)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 644 (2010) - Sentencing for Crimes

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:

• Hemphill v. State, 1988 OK CR 7, I 9, 954 P.2d 148