Nathan Todd Harvell v The State Of Oklahoma
RE-2014-248
Filed: May 11, 2015
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Nathan Todd Harvell appealed his conviction for unlawful possession of marijuana and unlawful possession of a controlled drug. The court reversed his conviction and sentence of five years in prison. Judge Johnson dissented.
Decision
The order of the District Court of Coal County granting the State's motion to dismiss the applications to revoke as moot, and ordering that Appellant be remanded to the custody of DOC to serve his five year terms of incarceration in Case Nos. CF-2005-34 and CF-2005-35 is REVERSED and REMANDED with instructions to dismiss. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the filing of this decision.
Issues
- Was there a loss of jurisdiction by the District Court when the application to revoke was dismissed?
- Did the withdrawal of the State's applications to revoke affect the enforcement of Appellant's suspended sentences?
- Can a suspended sentence be revoked without a petition and hearing if the application to revoke is withdrawn?
- Was the Appellant informed of his appeal rights at the time his plea was entered, affecting his ability to appeal the dismissal?
Findings
- the District Court lacked jurisdiction to revoke Appellant's suspended sentences when the prosecutor withdrew the pending application to revoke
- the order of the District Court granting the State's motion to dismiss the applications to revoke as moot is reversed
- the case is remanded with instructions to dismiss
RE-2014-248
May 11, 2015
Nathan Todd Harvell
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
LUMPKIN, VICE PRESIDING JUDGE:
The Appellant, Nathan Todd Harvell, appeals from an order entered by the Honorable Paula Inge, District Judge, granting the State’s motion to dismiss the applications to revoke as moot, and ordering that Appellant be remanded to the custody of the Department of Corrections (DOC) to serve his five-year terms of incarceration in Case Nos. CF-2005-34 and CF-2005-35 in the District Court of Coal County. In Case No. CF-2005-34, Appellant entered a plea of no contest to Unlawful Possession of Marijuana, Second and Subsequent. In Case No. CF-2005-35, Appellant entered a plea of no contest to Unlawful Possession of Controlled Drug. In both cases, he was convicted and sentenced to terms of five years, with the sentences all suspended upon the condition Appellant enter and complete the Drug Court program and pursuant to rules and condition of probation.
On December 15, 2005, the State filed applications to revoke Appellant’s suspended sentences alleging he violated probation by failing to pay monies as ordered, and by failing to enter in the Bryan or Cleveland County Drug Court. Appellant failed to appear at a scheduled hearing on the application to revoke and a bench warrant was issued for his arrest. Appellant appeared on February 11, 2014, and the revocation hearing was scheduled. On March 13, 2014, the revocation hearing began before Judge Inge with the parties all agreeing that Appellant had not entered Drug Court and did not want to enter Drug Court. The State argued that pursuant to his Judgments and Sentences Appellant had already been sentenced to five years imprisonment with the DOC. The State moved to withdraw its applications to revoke and asked that the Judgments and Sentences be executed. Judge Inge agreed with the State’s arguments; granted the motions to withdraw applications to revoke as moot; and ordered that the sentences be enforced by remanding Appellant to the custody of DOC.
Counsel for Appellant asked about appeal rights since the plea withdrawal time had long since passed, and this was determined not to be a revocation. Judge Inge found that Appellant had been advised of his appeal rights when his plea was entered, with appeal times commencing at that point. Judge Inge stated that there is no pending application to revoke and that all she was doing was enforcing the Judgments and Sentences. Appellant raises one proposition of error in this appeal arguing that, when the application to revoke was dismissed, the District Court lost its jurisdiction to sentence Appellant, thus the case must be remanded with instructions for dismissal.
The State has filed a response agreeing that the District Court lacked jurisdiction to revoke Appellant’s suspended sentences when the prosecutor withdrew the pending application to revoke. Although the Judgments and Sentences in Case Nos. CF-2005-34 and CF-2005-35 do state that Appellant is [s]entenced to a term of FIVE (5) YEARS imprisonment; they also state that the sentences are all suspended upon the condition of entering and completing Drug Court and pursuant to rules and conditions of probation. Whenever a sentence has been suspended by the court after conviction of a person for any crime, the suspended sentence of the person may not be revoked, in whole or part, for any cause unless a petition setting forth the grounds for such revocation is filed by the district attorney with the clerk of the sentencing court and competent evidence justifying the revocation of the suspended sentence is presented to the court at a hearing to be held for that purpose. 22 O.S.2011, § 991b(A); e.g. Degraffenreid v. State, 1979 OK CR 88, 9 10, 599 P.2d 1107, 1109 (an application to revoke a suspended sentence vests the trial court with the judicial power and authority to hear and determine the issue of revocation).
Thus, once the State’s motion to dismiss the applications to revoke in Case Nos. CF-2005-34 and CF-2005-35 was granted, Appellant’s suspended sentences could not be revoked.
DECISION
The order of the District Court of Coal County granting the State’s motion to dismiss the applications to revoke as moot, and ordering that Appellant be remanded to the custody of DOC to serve his five-year terms of incarceration in Case Nos. CF-2005-34 and CF-2005-35 is REVERSED and REMANDED with instructions to dismiss. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the filing of this decision.
Footnotes:
- 22 O.S.2011, § 991b(A); e.g. Degraffenreid v. State, 1979 OK CR 88, 9 10, 599 P.2d 1107, 1109
- Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015)
Oklahoma Statutes citations:
- Okla. Stat. tit. 22 § 991b(A) - Revocation of Suspended Sentences
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:
- Degraffenreid v. State, 1979 OK CR 88, 9 10, 599 P.2d 1107, 1109