Blog

ORIGINAL 1036965025 IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA JAMES WILBUR ALLEN, ) ) NOT FOR PUBLICATION Appellant, V. No. RE 2016-0784 THE STATE OF OKLAHOMA, FILED IN COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA Appellee. JUN – 8 2017 SUMMARY OPINION MICHAEL S. RICHIE LEWIS, VICE PRESIDING JUDGE: CLERK James Wilbur Allen, Appellant, pled guilty on August 28, 2001, in Delaware County District Court Case No. CF-2001-62, to six counts of Child Sexual Abuse. He was sentenced to twenty years on each count with the balance suspended upon successful completion of sex offender treatment program while incarcerated. The sentences were ordered to run concurrently. He was also fined $100.00. Ten years of Appellant’s suspended sentences were revoked following a revocation hearing on March 12, 2008, with the remaining suspended portions of the sentences supervised under the original rules and conditions of probation. The State filed an application to revoke the balance of Appellant’s suspended sentences on July 15, 2016, alleging Appellant committed the new crimes of Driving Under the Influence, Speeding and Driving with License Cancelled/Suspended/Revoked. The State also alleged Appellant failed to report his arrest as required, denied all law enforcement contact with his probation officer, then admitted to his probation officer that he had been frequenting bars and consuming alcoholic beverages for the past few months; and was in arrears with his probation fees. Following a revocation hearing on August 15, 2016, the Honorable Robert G. Haney, District Judge, found Appellant violated the conditions of probation and revoked Appellant’s suspended sentences in full, with credit for time served. The Judgment and Sentence on Motion to Revoke Suspended Sentence ordered Appellant to serve a term of post-imprisonment supervision for a period of one year. Appellant appeals the revocation of his suspended sentences raising the sole proposition of error that the District Court was without authority to modify his sentences by adding post-imprisonment supervision. See Friday v. State, 2016 OK CR 16, 114-6, 387 P.3d 928. The State answers that this claim is without merit as it has been rendered moot by the trial court’s correction of the written revocation order. The trial judge’s oral pronouncement specified no post-imprisonment supervision. The language imposing post-imprisonment supervision, however, appeared in the Judgment and Sentence on Motion to Revoke Suspended Sentence. This was remedied by the trial court on February 15, 2017, by the trial court issuing a Nunc Pro Tunc Judgment and Sentence on Motion to Revoke Suspended Sentence. DECISION As the Judgment and Sentence on Motion to Revoke Suspended Sentence has been corrected omitting the imposition of post-imprisonment supervision, the revocation of Appellant’s suspended sentences in Delaware County District Court 2 Case No. CF-2001-62 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2017), the MANDATE is ORDERED issued upon the filing of this decision. REVOCATION APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY, THE HONORABLE ROBERT G. HANEY, DISTRICT JUDGE APPEARANCES AT APPEARANCES ON APPEAL REVOCATION PROCEEDING LEE GRIFFIN ROBERT W. JACKSON OKLAHOMA INDIGENT DEFENSE APPELLATE DEFENSE COUNSEL SYSTEM P.O. BOX 926 P.O. BOX 367 NORMAN, OKLAHOMA 73070 JAY, OKLAHOMA 74346 COUNSEL FOR APPELLANT COUNSEL FOR DEFENDANT STEPHANIE BUSH MICHAEL J. HUNTER ASSISTANT DISTRICT ATTORNEY ATTORNEY GENERAL OF OKAHOMA DELAWARE COUNTY COURTHOUSE KEELEY L. MILLER 327 S. 5TH ST. ASSISTANT ATTORNEY GENERAL JAY, OKLAHOMA 74346 313 N.W. 21st STREET COUNSEL FOR THE STATE OKLAHOMA CITY, OKLAHOMA 73105 COUNSEL FOR THE STATE OPINION BY: LEWIS, V.P.J. LUMPKIN, P.J.: Concurs in Result JOHNSON, J.: Not Participating SMITH, J.: Concurs HUDSON, J.: Concurs RA 3

Click Here To Download PDF