Jason Duane Barnes v The State Of Oklahoma
RE-2014-575
Filed: Jul. 21, 2015
Not for publication
Prevailing Party: The State Of Oklahoma
Summary
Jason Duane Barnes appealed his conviction for violating his probation. His conviction and sentence included a revocation of eight years and ten months of suspended sentences. The court found that the State had not proven that he had committed a new crime, which was necessary to revoke his probation. The court decided that the previous decision made by Judge Wallace should be reversed, meaning these extra years of his sentence were canceled. Judge Smith, Judge Lumpkin, Judge Lewis, and Judge Hudson all agreed with this decision.
Decision
The order of the District Court of Choctaw County revoking the balance of Appellant's suspended sentences, eight years and ten months, in Case No. CF-2005-163 in the District Court of Choctaw County is REVERSED and REMANDED to the District Court for further proceedings. 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 sufficient evidence to support the revocation of Appellant's suspended sentence?
- Did the district court impermissibly extend the original sentence when revoking the suspended sentence?
- Must the July 21, 2014, "Order Revoking Suspended Sentence" be declared void due to timing issues?
- Did the subsequent order impermissibly extend Appellant's sentence and impose a term of post-incarceration probation?
Findings
- the court erred
- the court erred
- the court erred
- the court erred
RE-2014-575
Jul. 21, 2015
Jason Duane Barnes
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
MICHAEL S. RICHIE JOHNSON, JUDGE:
The Appellant, Jason Duane Barnes, appeals from an order entered by the Honorable Jana K. Wallace, Associate District Judge, revoking the balance of Appellant’s suspended sentences, eight years and ten months, in Case No. CF-2005-163 in the District Court of Choctaw County. On February 7, 2006, Appellant entered a plea of nolo contendere to Count 1: Manufacture of CDS; and Count 2: Maintain House Where CDS is Kept. He was sentenced to terms of ten years on Count 1, and five years on Count 2, to run concurrently with credit for time served and all suspended except for the first year. On February 1, 2010, the State filed a first application for revocation of Appellant’s suspended sentences, to which Appellant stipulated, and sixty days of his suspended sentences were revoked. On February 11, 2014, the State filed the current motion to revoke Appellant’s suspended sentences alleging he violated probation by committing the crime of Domestic Abuse Resulting in Great Bodily Injury as charged in Oklahoma County District Court Case No. CF-2012-6774. On June 17, 2014, the revocation hearing was held before Judge Wallace. The State introduced as evidence Appellant’s Judgment and Sentence, and other documents, in Oklahoma County District Court Case No. CF-2012-6774. Appellant objected and demurred claiming the Judgment and Sentence was not final. Judge Wallace overruled Appellant’s objection and demurrer and revoked the balance of Appellant’s suspended sentences, eight years and ten months. Appellant filed this appeal from the revocation of the balance of his suspended sentence asserting four propositions of error:
I. THE DISTRICT COURT ABUSED ITS DISCRETION IN FINDING THE EVIDENCE SUFFICIENT WHERE THE STATE FAILED TO PROVE THE FINALITY OF THE JUDGMENT INTRODUCED TO PROVE A VIOLATION OF PROBATION.
II. THE DISTRICT COURT ORDER ISSUED CONTEMPORANEOUSLY WITH THE REVOCATION OF THE REMAINING BALANCE OF MR. BARNES’ SUSPENDED SENTENCE IN FULL IMPERMISSIBLY EXTENDED THE ORIGINAL SENTENCE.
III. THE JULY 21, 2014, ORDER REVOKING SUSPENDED SENTENCE ISSUED SUBSEQUENT TO THE OPEN COURT REVOCATION ANNOUNCEMENT AND CONTEMPORANEOUS ORDER OF JUNE 17, 2014, MUST BE DECLARED VOID.
IV. THE ORDER REVOKING SUSPENDED SENTENCE ISSUED SUBSEQUENT TO THE CONTEMPORANEOUS ORDER MEMORIALIZING THE REVOCATION OF APPELLANT’S SUSPENDED SENTENCE IMPERMISSIBLY EXTENDS MR. BARNES’ SENTENCE AND IMPERMISSIBLY IMPOSED A TERM OF POST-INCARCERATION PROBATION.
The State has filed a response agreeing that there is merit to Appellant’s Proposition I. The State acknowledges that the District Court erred in failing to sustain Appellant’s objection to State’s exhibit 1 and in failing to grant the demurrer to the state’s evidence.
ANALYSIS
A suspended sentence may not be revoked, in whole or part, for any cause unless a petition setting forth the grounds for such revocation is filed 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). The evidence must show by a preponderance of the evidence that the defendant has violated the rules and conditions of his probation. Robinson v. State, 1991 OK CR 44, 11 3, 809 P.2d 1320, 1321. When the State seeks to revoke a suspended sentence on the basis a new crime has been committed, the State must either prove each element of the offense alleged, or must provide strict proof of the finality of the judgment and sentence imposed for the new crime. Sams v. State, 1988 OK CR 137, II 6, 758 P.2d 834, 835. A judgment and sentence becomes final when the defendant does not appeal within the time prescribed for direct appeal or, if the defendant perfects a direct appeal, final disposition is made and entered by the appellate court. Pickens v. State, 1989 OK CR 58, IT 12, 779 P.2d 596, 598. Both Appellant and the State agree that the only evidence presented at the revocation hearing was Appellant’s Judgment and Sentence in Oklahoma County District Court Case No. CF-2012-6774. No evidence was presented that the Judgment and Sentence was final. Therefore, this matter must be reversed and remanded to the District Court for further proceedings. See Pickens, supra.
DECISION
The order of the District Court of Choctaw County revoking the balance of Appellant’s suspended sentences, eight years and ten months, in Case No. CF-2005-163 in the District Court of Choctaw County is REVERSED and REMANDED to the District Court for further proceedings. 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.
AN APPEAL FROM THE DISTRICT COURT OF CHOCTAW COUNTY
THE HONORABLE JANA K. WALLACE, ASSOCIATE DISTRICT JUDGE
APPEARANCES IN DISTRICT COURT APPEARANCES ON APPEAL
J. ELIZABETH GRIFFITH RICKI J. WALTERSCHEID
Attorney at Law Appellate Defense Counsel
113 North Central Avenue P. O. Box 926
Idabel, OK 74745 Norman, OK 73070
COUNSEL FOR APPELLANT COUNSEL FOR APPELLANT
MARK UPTEGROVE E. SCOTT PRUITT
Assistant District Attorney Attorney General of Oklahoma
Choctaw County Courthouse JAY SCHNIEDERJAN
300 East Duke Street Assistant Attorney General
Hugo, OK 74743 313 N.E. 21st Street
Oklahoma City, OK 73105
COUNSEL FOR THE STATE COUNSEL FOR THE STATE
OPINION BY: JOHNSON, J.
SMITH, P.J.: Concur
LUMPKIN, V.P.J.: Concur
LEWIS, J.: Concur
HUDSON, J.: Concur
RC/F
Footnotes:
- 22 O.S.2011, § 991b(A).
- Robinson v. State, 1991 OK CR 44, 11 3, 809 P.2d 1320, 1321.
- Sams v. State, 1988 OK CR 137, II 6, 758 P.2d 834, 835.
- Pickens v. State, 1989 OK CR 58, IT 12, 779 P.2d 596, 598.
Oklahoma Statutes citations:
- Okla. Stat. tit. 22 § 991b(A) - Revocation of suspended sentences
- Okla. Stat. tit. 21 § 701.8 - Domestic abuse
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:
- Robinson v. State, 1991 OK CR 44, I 3, 809 P.2d 1320, 1321
- Sams v. State, 1988 OK CR 137, II 6, 758 P.2d 834, 835
- Pickens v. State, 1989 OK CR 58, II 12, 779 P.2d 596, 598