The State Of Oklahoma v David Franco

S 2011-0023

Filed: Oct. 17, 2011

Not for publication

Prevailing Party: David Franco

Summary

David Franco appealed his conviction for using a vehicle to discharge a weapon, assault, and other charges. The court upheld the lower court's decision, which dismissed some of the counts against him. The State could not prove enough evidence for all the charges, so the court affirmed the earlier ruling. Judge Lumpkin and Judge Johnson agreed with the decision, while Judge Smith did not participate.

Decision

The order of the District Court of Cleveland County dismissing Counts 1 and 3 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

Issues

• Was there probable cause to believe that the crimes charged in Counts 2, 4, 5, and 6 were committed by David Franco?
• Did the District Judge err by affirming the Magistrate's ruling that dismissed Counts 1 and 3?
• Did the State meet its burden to demonstrate sufficient evidence to support a probable cause finding for the felonies charged?
• Was there an abuse of discretion in the Magistrate's determination which would warrant interference by the appellate court?

Findings

• The court affirmed the dismissal of Counts 1 and 3.

S 2011-0023

Oct. 17, 2011

The State Of Oklahoma

Appellant

v

David Franco

Appellee

SUMMARY OPINION

LEWIS, VICE PRESIDING JUDGE: Appellee, David Franco, was charged in the District Court of Cleveland County, Case No. CF-2010-352, with Counts 1, 2 and 3 – Use of a Vehicle in Discharge of a Weapon in Concert with Joel Christian Aranda, Count 4 – Assault and Battery with a Dangerous Weapon in Concert with Joel Christian Aranda, Count 5 – Feloniously Pointing a Firearm in Concert with Joel Christian Aranda, and Count 6 – Assault and Battery with a Dangerous Weapon in Concert with Joel Christian Aranda. The preliminary hearing was held December 15, 2010. The Magistrate, the Honorable Steven L. Stice, found probable cause to believe that the crimes in Counts 2, 4, 5 and 6 were committed and that Mr. Franco committed those crimes. Magistrate Stice sustained demurrers to Counts 1 and 3. The State appealed the ruling to the District Court. Following a hearing January 3, 2011, the Honorable George Butner, District Judge, affirmed Judge Stice’s ruling. From this adverse ruling, the State appeals to this Court pursuant to Section 1089.7 of Title 22. The appeal was automatically assigned to the Accelerated Docket of this Court. See Rule 11.2(A)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2011). Oral argument was held August 25, 2011, pursuant to Rule 11.2(F). On appeal, the State argued the District Judge erred by affirming the decision of the Magistrate. The purpose of the preliminary hearing is to establish probable cause that a crime was committed and probable cause that the defendant committed the crime. 22 O.S. Supp.2003, § 258(Eighth). The standard of review, set out in Section 1089.5 of Title 22, is whether the evidence, taken in the light most favorable to the State, is sufficient to find that a felony crime has been committed and that the defendant probably committed said crime. Absent an abuse of discretion in reaching that determination, the magistrate’s ruling will remain undisturbed. See State U. Weese, 1981 OK CR 19, 625 P.2d 118. In this case the State has not met its burden. As such, we will not interfere with the judgments of the lower courts.

DECISION
The order of the District Court of Cleveland County dismissing Counts 1 and 3 is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011), the MANDATE is ORDERED issued upon the filing of this decision.

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Footnotes:

1. 22 O.S. Supp.2003, § 258(Eighth)
2. State U. Weese, 1981 OK CR 19, 625 P.2d 118
3. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011)

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 258 (Supp. 2003) - Preliminary Hearing
• Okla. Stat. tit. 22 § 1089.5 (2011) - Standard of Review
• Okla. Stat. tit. 22 § 1089.7 (2011) - Appeal from District Court
• Okla. Stat. tit. 22 § 11.2 (2011) - Rules of the Oklahoma Court of Criminal Appeals

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:

• State U. Weese, 1981 OK CR 19, 625 P.2d 118