The State of Oklahoma v Donald Isaiah Phares

S-2004-1009

Filed: Jul. 7, 2005

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# The State of Oklahoma appealed Donald Isaiah Phares' conviction for Negligent Homicide. Conviction and sentence were affirmed. Judge Lumpkin dissented. In this case, the State of Oklahoma wanted to punish Donald Isaiah Phares for causing a car crash that resulted in someone's death. Phares had already been given a ticket for not stopping at a stop sign related to the crash. He admitted his guilt by paying a fine for that ticket. Later, the State charged him with Negligent Homicide, saying that his action of not stopping showed he acted recklessly. Phares argued that being charged again for Negligent Homicide was unfair since he had already paid for the first offense, and this was wrong because of double jeopardy laws that say a person can’t be punished twice for the same act. The district court agreed and dismissed the homicide charge. The State didn’t agree with the court's decision and appealed it. However, the Oklahoma Court of Criminal Appeals sided with the lower court, stating that both charges came from the same action, and it would be wrong to punish him twice. Judge Lumpkin disagreed and thought the charges were separate, believing that Phares should be held accountable for both offenses.

Decision

The Order of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

• Was there a violation of Appellee's constitutional protection from double jeopardy?
• Did the district court err in concluding that the prosecution for Negligent Homicide amounted to double punishment under 21 O.S.2001, § 11?
• Were both prosecutions based on a single act or omission by Appellee?
• Does the traffic offense of failing to stop at a stop sign constitute a lesser offense included in the charge of negligent homicide?

Findings

• the district court's interpretation of 21 O.S.2001, § 11 is affirmed
• the prosecution amounted to double punishment and was dismissed
• the State's claim that the district court erred is denied

S-2004-1009

Jul. 7, 2005

The State of Oklahoma

Appellant

v

Donald Isaiah Phares

Appellee

SUMMARY OPINION

Appellant, the State of Oklahoma, appeals an order of the District Court of Pottawatomie County, Case No. CM-2004-23, dismissing prosecution for Negligent Homicide (47 O.S.2001, § 11-903) on grounds that it violates the Appellee’s statutory protection from being punished twice for the same offense. The district court made its ruling September 17, 2004, and the State gave oral notice of its intention to appeal. Written notice of intent to appeal was timely filed in the district court, and the appeal was timely perfected in this Court.

The record shows that on September 15, 2003, Appellee was involved in a two-vehicle collision. The other driver died at the scene. Appellee was cited for Failing to Stop at a Stop Sign (47 O.S.2001, § 11-403). The ticket was filed with the Pottawatomie County Court Clerk on October 7, 2003 (Case No. TR-2003-4453). On October 21, 2003, Appellee waived his right to a hearing, entered a nolo contendere plea to the charge, and paid a fine and court costs totaling $132.00. On January 13, 2004, the State filed the instant charge for Negligent Homicide, alleging that Appellee’s failure to stop at a stop sign preceding the September 15, 2003 accident amounted to reckless disregard of others. Appellee filed a motion to dismiss this prosecution, contending it violated both his constitutional protection from double jeopardy, as well as his statutory protection from double punishment. On September 17, 2004, the Honorable J. David Cawthon, Special Judge, agreed, ordered the case dismissed, and exonerated Appellee’s bond.

In its sole proposition of error, the State claims that the district court erred in concluding that the instant prosecution amounted to double punishment under 21 O.S.2001, § 11, and in dismissing the prosecution for that reason. The State contends that the district court’s interpretation of § 11 is inconsistent with this Court’s own interpretation in Davis v. State, 1999 OK CR 48, 11 9-11, 993 P.2d 124, 126. After thorough consideration of the entire record, and the briefs of the parties, we affirm. The district court’s interpretation of 21 O.S.2001, § 11 is consistent not only with Davis but with the plain language of the statute itself.

Both of the prosecutions at issue here were based on a single act or omission allegedly committed by Appellee. Without the traffic offense, the State’s allegation of homicide caused by criminally negligent operation of a motor vehicle could not have been proven. The traffic offense was necessarily included within the charge of negligent homicide. The instant prosecution clearly amounted to a successive prosecution based on the same culpable act or omission, and a conviction therefor would have resulted in double punishment. 21 O.S.2001, § 11(A); Davis, 1999 OK CR 48 at 13, 993 P.2d at 126; Peacock v. State, 2002 OK CR 21, 91 4-5, 46 P.3d 713, 714. We find no reason to disturb the district court’s conclusions.

Section 11 provides, in pertinent part: [A]n act or omission which is made punishable in different ways by different provisions of this title may be punished under any of such provisions, but in no case can a criminal act or omission be punished under more than one section of law; and an acquittal or conviction and sentence under one section of law, bars the prosecution for the same act or omission under any other section of law.

DECISION

The Order of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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Footnotes:

1. 21 O.S.2001, § 11
2. Davis v. State, 1999 OK CR 48, 993 P.2d 124
3. Peacock v. State, 2002 OK CR 21, 46 P.3d 713
4. State v. Love, 1998 OK CR 32, 960 P.2d 368
5. Hale v. State, 1995 OK CR 7, 888 P.2d 1027
6. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084
7. U.S. v. Dixon, 509 U.S. 688, 113 S.Ct. 2849
8. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180
9. Mooney v. State, 1999 OK CR 34, 990 P.2d 875
10. Harris v. Oklahoma, 433 U.S. 682
11. Ash v. Swenson, 397 U.S. 436

Oklahoma Statutes citations:

• Okla. Stat. tit. 47 § 11-903 - Negligent Homicide
• Okla. Stat. tit. 47 § 11-403 - Failing to Stop at a Stop Sign
• Okla. Stat. tit. 21 § 11 - Double Punishment
• Okla. Stat. tit. 21 § 701.8 - Homicide by Negligent Operation of Vehicle

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:

• Davis v. State, 1999 OK CR 48, 993 P.2d 124
• Peacock v. State, 2002 OK CR 21, 46 P.3d 713
• State v. Love, 1998 OK CR 32, 960 P.2d 368
• Hale v. State, 1995 OK CR 7, 888 P.2d 1027
• Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084
• U.S. v. Dixon, 509 U.S. 688, 113 S.Ct. 2849
• Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180
• Mooney v. State, 1999 OK CR 34, 990 P.2d 875
• Harris v. Oklahoma, 433 U.S. 682
• Ash v. Swenson, 397 U.S. 436