Eric Lamont Muhammad v The State Of Oklahoma

RE-2015-104

Filed: Mar. 17, 2016

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

Eric Lamont Muhammad appealed his conviction for revocation of his suspended sentence. His conviction and sentence involved a ten-year term for Shooting With Intent to Kill, with six years suspended. One judge dissented.

Decision

The order of the District Court of Oklahoma County granting the State's application to revoke Appellant's six year suspended sentence in Case No. CF-2008-7778 is REVERSED and REMANDED to the District Court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there a violation of the requirement to hold a hearing on the application to revoke a suspended sentence within twenty days of entering a plea of not guilty?
• Did the Appellant waive the twenty day hearing requirement or acquiesce in a continuance of the hearing?
• Was the hearing held on January 26, 2015, after the expiration of the twenty day period specified by law?
• Did the court err in revoking the Appellant's suspended sentence based on the timing of the hearing?

Findings

• the court erred in holding the hearing after the twenty day period had expired
• the order granting the State's application to revoke Appellant's suspended sentence is reversed and remanded

RE-2015-104

Mar. 17, 2016

Eric Lamont Muhammad

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

LUMPKIN, VICE PRESIDING JUDGE:

The Appellant, Eric Lamont Muhammad, appeals from an order entered by the Honorable Cindy H. Truong, District Judge, revoking Appellant’s six year suspended sentence in Case No. CF-2008-7778 in the District Court of Oklahoma County. On November 19, 2009, Appellant entered a plea of guilty and was convicted of Shooting With Intent to Kill. He was sentenced to a term of ten years, with all except the first four years suspended. On December 29, 2014, the State filed an application to revoke Appellant’s suspended sentence alleging he violated probation (1) by failing to pay supervision fees; (2) by committing, on or about 9/16/14, the new crime of Possession of a CDS as charged in Oklahoma County District Court Case No. CM-2014-3178; and (3) by committing, on or about 6/2/14, the new crime of Domestic Abuse By Strangulation as charged in Oklahoma County District Court Case No. CF-2014-3660. On January 5, 2015, Appellant entered a plea of not guilty to the application to revoke.

The revocation hearing was conducted before Judge Truong on Monday, January 26, 2015. After hearing the evidence and arguments, Judge Truong found that Appellant had committed the new crime of Possession of a CDS, and revoked Appellant’s six year suspended sentence in full. We will only discuss Appellant’s first proposition of error in this appeal because the State has confessed error on that proposition.

The hearing on an application to revoke a suspended sentence must be held within twenty (20) days after the entry of the plea of not guilty to the petition, unless waived by both the state and the defendant. 22 O.S.2011, § 991b(A). In this case, Appellant entered a plea of not guilty to the application to revoke his suspended sentence on January 5, 2015. Appellant argues, and the State agrees that the twenty day period for holding the hearing expired on Sunday, January 25, 2015; and therefore the hearing on Monday, January 26, 2015, was held after the twenty day time period had expired. Both parties agree that there is no record in this case that Appellant waived the twenty day hearing requirement or acquiesced in a continuance of the hearing.

DECISION

The order of the District Court of Oklahoma County granting the State’s application to revoke Appellant’s six year suspended sentence in Case No. CF-2008-7778 is REVERSED and REMANDED to the District Court. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon the filing of this decision.

APPEARANCES IN DISTRICT COURT

DAVID T. McKENZIE
Assistant Public Defender
Oklahoma County Public Defender’s Office
320 Robert S. Kerr
611 County Office Building
Oklahoma City, OK 73102

COUNSEL FOR APPELLANT

PAULINA THOMPSON
Assistant District Attorney
Oklahoma County District Attorney’s Office
320 Robert S. Kerr
505 County Office Building
Oklahoma City, OK 73102

COUNSEL FOR THE STATE

OPINION BY: LUMPKIN, V.P.J.

SMITH, P.J.: Dissent
JOHNSON, J.: Concur
LEWIS, J.: Concur
HUDSON, J.: Concur

SMITH, P.J., DISSENTING: In this case the 20th day was a Sunday. The hearing was held on Monday. I would find that the hearing was timely pursuant to OCCA Rule 1.5; 12 O.S. 2006; and Reynolds v. State, 1987 OK CR 56, 735 P.2d 564.

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Footnotes:

1. 22 O.S.2011, § 991b(A).
2. 12 O.S. 2006.
3. Reynolds v. State, 1987 OK CR 56, 735 P.2d 564.

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991b(A) - Hearing on Application to Revoke Suspended Sentence
• Okla. Stat. tit. 12 § 2006 - Time Requirements for Hearings
• Reynolds v. State, 1987 OK CR 56, 735 P.2d 564 - Case Law Reference

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:

• Reynolds v. State, 1987 OK CR 56, 735 P.2d 564