Opinion
RE-2023-909
10-31-2024
JASON MARTIN, JR., Appellant v. THE STATE OF OKLAHOMA, Appellee
APPEARANCES AT REVOCATION, BOBBY LEWIS, INDIGENT DEFENSE SYSTEM, COUNSEL FOR DEFENDANT, MICHAEL BEASON, ASST. DISTRICT ATTORNEY, COUNSEL FOR STATE. APPEARANCES ON APPEAL CHRISTOPHER CAPRARO, INDIGENT DEFENSE SYSTEM COUNSEL FOR APPELLANT GENTNER F. DRUMMOND OKLA. ATTORNEY GENERAL, JOSHUA L. LOCKETT, ASST. ATTORNEY GENERAL COUNSEL FOR APPELLEE.
AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY, THE HONORABLE JAY WALKER, DISTRICT JUDGE.
APPEARANCES AT REVOCATION, BOBBY LEWIS, INDIGENT DEFENSE SYSTEM, COUNSEL FOR DEFENDANT, MICHAEL BEASON, ASST. DISTRICT ATTORNEY, COUNSEL FOR STATE.
APPEARANCES ON APPEAL CHRISTOPHER CAPRARO, INDIGENT DEFENSE SYSTEM COUNSEL FOR APPELLANT GENTNER F. DRUMMOND OKLA. ATTORNEY GENERAL, JOSHUA L. LOCKETT, ASST. ATTORNEY GENERAL COUNSEL FOR APPELLEE.
SUMMARY OPINION
MUSSEMAN, VICE PRESIDING JUDGE.
¶1 Appellant, Jason Martin Jr., appeals from the revocation of his suspended sentence in Comanche County District Court Case No. CF-2016-721. On June 9, 2017, Appellant pleaded guilty to Assault and Battery with a Deadly Weapon (21 O.S.2011, § 645) (Count 1) and Possession of a Firearm After Juvenile Adjudication (21 O.S.Supp.2014, § 1283 (D)) (Count 2). He was sentenced to concurrent terms of ten years imprisonment on each count, with all except the first eight years suspended.
¶2 On July 8, 2021, the State filed a motion to revoke Appellant's suspended sentence, alleging he violated his probation by failing to pay restitution and pleading guilty to the new crimes of Use of a Vehicle in Discharge of a Weapon, Felon in Possession of a Firearm, and Assault and Battery with a Deadly Weapon on April 8, 2021, in Oklahoma County District Court Case No. CF-2020-3033. Following a revocation hearing held on November 6, 2023, the Honorable Jay Walker, District Judge, revoked Appellant's suspended sentence in full and, over Appellant's objection, ordered it to be served consecutively to his sentence in Oklahoma County Case No. CF-2020-3033. Appellant appeals from the order of revocation.
¶3 On appeal, Appellant argues, and the State concedes, the trial court lacked authority at the time of revocation to order Appellant's sentence in this case to be served consecutively to his subsequently imposed Oklahoma County sentence. We agree.
¶4 It is well settled that "when a defendant is sentenced, he receives only one sentence, not multiple ones," and that any order of suspension "is not a separate sentence but is instead a condition placed upon the execution of the sentence." Hemphill v. State, 1998 OK CR 7, ¶ 6, 954 P.2d 148, 150. As such, when the trial court revokes an order of suspension, it is not imposing a new sentence, but rather, it is merely ordering execution of the original sentence. Robinson v. State, 1991 OK CR 44, ¶ 3, 809 P.2d 1320, 1322 ("The consequence of the judicial revocation is to execute a penalty previously imposed in the judgment and sentence.").
¶5 Here, Appellant was convicted and sentenced in this case in 2017--well before he committed the new crimes in Oklahoma County. Naturally, his original judgment and sentence made no reference to the then non-existent Oklahoma County case. In 2021, Appellant was convicted of new felony offenses in Oklahoma County District Court Case No. CF-2020-3033, and his sentence in that case was ordered "to run... concurrently with Comanche County case CF-2016-721." Nevertheless, during the 2023 revocation proceedings in this case, the Comanche County District Court ordered the revoked sentence in Case No. CF-2016-721 to be served consecutively to the Oklahoma County sentence.
¶6 The Oklahoma County District Court had clear statutory authority to order the sentence in Case No. CF-2020-3033 to run concurrently with Appellant's existing sentence in this case. See 22 O.S.2011, § 976. In contrast, neither Section 976 nor the revocation statute, 22 O.S.Supp.2019, § 991b, authorizes a trial court revoking a suspended sentence to modify the terms of an original judgment and sentence under the present circumstances. Appellant's original judgment and sentence in this case did not provide for a consecutive sentence. The Comanche County District Court therefore abused its discretion when it entered an inconsistent revocation order directing the sentence to run consecutively to the Oklahoma County sentence. See Jones v. State, 1988 OK CR 20, ¶ 8, 749 P.2d 563, 565 (revocation decision of trial court is reviewed for an abuse of discretion); Neloms v. State, 2012 OK CR 7, ¶ 35, 274 P.3d 161, 170 (defining an abuse of discretion). Accordingly, this matter must be remanded to the District Court of Comanche County for entry of a revocation order that omits the inconsistency.
Cf. 22 O.S.Supp.2019, § 991b (G) (requiring trial court, upon revocation of a suspended sentence "for an offense where the penalty has subsequently been lowered to a misdemeanor," to modify the sentence "to a term that does not exceed the current maximum sentence.").
DECISION
¶7 The revocation of Appellant's suspended sentence in Comanche County District Court Case No. CF-2016-721 is AFFIRMED and this matter is REMANDED to the District Court for entry of a revocation order consistent with Appellant's original judgment and sentence. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2024), the MANDATE is ORDERED issued upon the filing of this decision.
ROWLAND, P.J.: Concur.
LUMPKIN, J.: Concur.
LEWIS, J.: Concur.
HUDSON, J.: Concur.