Collyar, In re

• Decision Date: 01 April 1970
• Docket Number: No. A--15922,A--15922
• Citation: 476 P.2d 354
• Parties: In re Habeas Corpus of Gaylin Gene COLLYAR.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 354

476 P.2d 354

In re Habeas Corpus of Gaylin Gene COLLYAR.

No. A--15922.

Court of Criminal Appeals of Oklahoma.

April 1, 1970.

Syllabus by the Court

1. The judge suspending a sentence shall specify the terms, if any, upon which such suspended sentence is conditioned; and responsibility for specifying such terms may not be delegated.

2. A person whose suspended sentence is being revoked must be advised of the allegations which must state how the terms of the suspended sentence were violated, and must be given an opportunity to refute such allegations.

3. Competent evidence must be presented to the court, at a hearing held for that purpose, before a person's suspended sentence can be revoked.

4. The court cannot delegate to the Department of Corrections, the specification of terms and conditions of a suspended sentence.

5. The person whose suspended sentence is being revoked has the right to counsel and to present evidence in his own behalf, and shall have the right to be confronted by the witnesses appearing against him.

6. The order revoking a suspended sentence may be appealed to the Court of Criminal Appeals, as in other appeals of criminal cases.

7. A person granted a suspended sentence from a conviction for a felony, or whose suspended sentence is being revoked because of a pending charge for a felony, is not entitled to bail pending the appeal from the revocation order.

8. A person, whose suspended sentence is being revoked, is not entitled to receive the full scope of constitutional due process at the revocation hearing, but should receive at least fundamental considerations of fairness.

An original proceeding in habeas corpus seeking release from confinement in the State Penitentiary, as the result of a revocation of suspended sentence. Writ granted.

Carroll E. Gregg, Turner & Gregg, Oklahoma City, for petitioner.

G. T. Blankenship, Atty. Gen., W. Howard O'Bryan, Jr., D. E. Herrold, Bill Bonnell, Asst. Attys. Gen., for respondent.

BRETT, Presiding Judge.

This is an original proceeding in habeas corpus in which petitioner is seeking his release from the penitentiary. Petitioner was confined as the result of an order of the district court of Oklahoma County, revoking petitioner's seven year suspended sentence. Said order was entered in that court's case number 34784, on November 7, 1968, on a plea of guilty to a charge of possession of marihuana. The suspension provision, on the printed judgment and sentence form used by the said court, reads as follows:

'It is further Ordered, Adjudged and Decreed by the Court that this judgment and sentence shall be and is suspended pursuant to the provisions of the Oklahoma Corrections Act of 1967, and pursuant to the rules of the Department of Corrections of the State of Oklahoma, provided however the defendant shall pay the costs of this action.'

Thereafter, on February 24, 1969, an alias warrant was issued on the grounds that petitioner 'has violated the terms of his suspended sentence.' On the following day, February 25th, the district attorney filed an 'Application to Revoke Suspended Sentence.' The said application recites the following:

'The Court is further informed that the defendant has subsequently failed to comply with the terms of his suspended sentence, in that: The defendant has been associating with ex-convicts or persons having a criminal record and is maintaining a narcotic habit by obtaining and using Class 'A' narcotic drugs known as Numorphan (oxy morphone) hydrochloride and Demerol.'

On February 28, 1969, a hearing was had on the application to revoke, and petitioner's suspended sentence was revoked. The findings of the revocation order state that, 'the said defendant has violated the terms of the order granting said defendant a suspended sentence, and the Court being advised: The defendant has violated the terms of his suspended sentence.' The record of the revocation hearing is not available to the Court. However, the Court is informed that no record was made at the time the suspended sentence was imposed, so we must be governed in this decision by the terms stated on the judgment and sentence.

A hearing was had in this Court on March 25, 1970, on petitioner's request for issuance of the writ of habeas corpus. At that hearing the State Attorney General's office represented the respondent herein and conceded that the Department of Corrections Act of 1967 made no provisions concerning suspended sentence, as referred to in the said judgment and sentence. It was likewise agreed that there is no statutory authority for the trial court to delegate the authority of imposing terms and conditions for a suspended sentence to the Department of Corrections, or to any other department of government. It is the sole authority and responsibility of the court imposing a suspended sentence to set forth and the terms and conditions governing such suspension.

Counsel for petitioner relies on Madden v. Faulkner, Sheriff, Okl.Cr., 450 P.2d 860, as authority for this Court to entertain this habeas corpus petition, as well as authority for this Court to grant petitioner his relief prayed for. Counsel for petitioner argues that there is no relationship between terms and conditions of the judgment and sentence and the reasons set forth in either the application to revoke, or the trial court's findings in the order of revocation. In substance, counsel argues, the execution of sentence was suspended without conditions, insofar as the said Corrections Act of 1967 is silent concerning such matter. This Court is inclined to agree with counsel.

In addition to what is provided in the Madden case, supra, this Court recited in Burgett v. State, Okl.Cr., 362 P.2d 975, that habeas corpus is a proper remedy to test the sufficiency of a hearing revoking a suspended sentence. Admittedly the Burgett case was decided prior to the enactment of 22 O.S.Supp. § 991b, which now specifically provides for an appeal from the order of revocation. However, at the time petitioner's suspended sentence was revoked, § 991b had not been enacted by the Legislature. Likewise, in the Burgett case, supra, this Court stated that this Court will determine whether or not there has been an abuse of judicial discretion in revoking the suspended sentence.

In Madden v. Faulkner, supra, this court provides in the first paragraph of the syllabus:

'Since there are no statutory guidelines as to grounds for revoking a suspended sentence, it is incumbent upon a judge suspending a sentence to specify the terms, if any, upon which such suspended sentence is conditioned, and a person on such suspended sentence must have notice and opportunity to refute allegations that such specified conditions have been violated before such person can be deprived of his liberty.' 22 O.S.Supp. § 991a.

Under the provisions of 22 O.S.Supp. § 991a, the sentencing powers of the court are stated as follows:

Whenever a person is convicted of any crime, except when the death sentence is imposed, the court may:

(1) Suspend the imposition or execution of sentence with or without probation, or (2) Place such convicted person on probation, or

(3) Impose a fine as provided...