Edwards v. State

• Decision Date: 22 December 1987
• Docket Number: No. M-87-345,M-87-345
• Citation: 747 P.2d 968
• Parties: Robert K. EDWARDS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 968

747 P.2d 968

Robert K. EDWARDS, Appellant, v. STATE of Oklahoma, Appellee.

No. M-87-345.

Court of Criminal Appeals of Oklahoma.

Dec. 22, 1987.

An appeal from the District Court of Kay County; Leslie D. Page, District Judge.

Robert K. Edwards, appellant, entered pleas of nolo contendere to charges filed in the District Court of Kay County Case No. CRF-85-268 and Case No. CRM-85-336 and received deferred sentences of two years imprisonment and six months' imprisonment, respectively. He was later charged in CRF-86-90 with four counts of violation of 21 O.S.Supp.1986, § 1541.1 et seq. REVERSED and REMANDED.

Wesley R. Thompson, Sapulpa, for appellant.

Robert H. Henry, Atty. Gen., M. Caroline Emerson, Asst. Atty. Gen., and Randy J. Malone, Legal Intern, Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Robert K. Edwards, the appellant, entered pleas of nolo contendere to the crimes of Embezzlement of Rented Property and Obtaining Cash or Merchandise by Means of a False or Bogus Check in District Court of Kay County Case Nos. CRF-85-268 and CRM-85-336. He received deferred sentences of two (2) years' imprisonment and six (6) months' imprisonment, respectively, on January 17, 1986.

Prior to and during the time the above criminal charges were pending, the company owned by the appellant and his brother entered into a joint venture with some Oklahoma City investors to build a natural gas pipeline. The investors were to supply funds to pay for the project while the appellant's company was to provide the labor and construction materials for the project. At about the time the appellant entered his pleas to the above charges, the investors refused to forward funds necessary to cover checks the appellant had written on his company account. Several checks did not clear the bank, due to insufficient funds. While the appellant was able to cover most of those checks with his personal funds, four checks were turned over to the District Attorney for Kay County, who had prosecuted the above charges. Upon learning that the appellant had again written checks that were not backed by sufficient funds, the District Attorney filed an application to accelerate the deferred sentences in Case No. CRF-85-263 and CRM-85-336. A hearing was held, at the close of which the trial court ruled that the appellant had violated the condition of his deferred sentences, and ordered that he serve the terms of incarceration specified in the above cases. The appellant appeals that order of the District Court of Kay County accelerating his deferred sentences, raising four assignments of error.

As his first assignment of error, the appellant argues that the application filed by the District Attorney did not set forth the necessary grounds to accelerate the sentence. We must disagree.

The State is not required to file such an application. Anderson v. State, 512 P.2d 1387 (Okl.Cr.1973). However, if a defendant's deferred sentence is near expiration, an application to accelerate must be filed prior to the expiration of the deferred sentence before the trial court will have jurisdiction to hear the application after the expiration date. See State v. Rodriquez, 547 P.2d 974 (Okl.Cr.1976). Due Process requires that an application to revoke a suspended sentence allege sufficient facts to put the defendant on notice of the reasons for the application and sufficient facts necessary to allow him to prepare a meaningful defense. See e.g. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Lennox v. State, 674 P.2d 1146 (Okl.Cr.1984). We think it obvious that the same standard would apply to an application to accelerate a deferred sentence.

Here, the application in question simply stated that the appellant had been charged "with the offense of Obtaining Cash and/or Merchandise by Bogus Check in Kay County, Case No. CRF-86-90 on the 17th day of March, 1986." Clearly, the felony information in Case No. CRF-86-90 was incorporated by reference in the application. This is sufficient to meet Due Process requirements. In fact, the record makes it abundantly clear that the appellant had been sufficiently informed of the allegations against him and did put on a meaningful defense. This assignment of error is without substance and is meritless.

Next, the appellant argues that there were no terms and conditions of probation imposed upon him when he received his deferred sentences and, therefore, the trial judge erred in concluding that he had violated those terms. The record, however, conclusively rebuts this allegation. On its face, the record shows that the ONLY condition of the appellant's deferred sentence was that he not commit any further violations of law. We think it ludicrous to suggest that the appellant would not know that passing a bogus check would be a violation of the law. This assignment has no merit.

As his third assignment of error, the appellant states that the trial court abused its discretion in accelerating the deferred sentences because all of the counts in Case No. CRF-86-90 were either dismissed or the appellant was subsequently found not guilty at trial. In his fourth assignment, the appellant shows this Court that two counts were dismissed, and that the appellant was, in fact, found not guilty on the other two counts; all of which were the basis for the District Attorney's application to accelerate.

The fact that the appellant was subsequently found not guilty of the charges is of little relevance here. At trial, the burden of proof on the State is much stronger than the burden of proof at an acceleration proceeding. See e.g. Evans v. State, 609 P.2d 784, 785 (Okl.Cr.1980); Beller v. State, 597 P.2d 338 (Okl.Cr.1979); Gill v. State, 521 P.2d 407 (Okl.Cr.1974)....