Ellis v. State, F-85-761
| Citation | 749 P.2d 114 |
| Decision Date | 12 January 1988 |
| Docket Number | No. F-85-761,F-85-761 |
| Parties | William Dee ELLIS, Appellant, v. The STATE of Oklahoma, Appellee. ourt of Criminal Appeals of Oklahoma |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, William Dee Ellis, was tried by jury and convicted of Robbery With a Dangerous Weapon, After Former Conviction of Two Felonies, in violation of 21 O.S.Supp.1982, § 801, in Oklahoma County District Court, Case No. CRF-84-3880, before the Honorable Jack Parr, District Judge. The jury set punishment at sixty (60) years imprisonment. Judgment and sentence was imposed accordingly. We affirm as hereinafter modified.
The appellant challenges only the instructions during the punishment stage of his trial and, therefore, a statement of the facts is unnecessary. During the second stage, the State introduced two judgments and sentences reflecting that the appellant had two prior felony convictions for robbery with a dangerous weapon.
In his sole assignment of error, appellant claims that the trial court committed fundamental error in instructing the jury during the second stage that the minimum punishment was twenty (20) years imprisonment pursuant to the Habitual Offender Act of 21 O.S.1981, § 51(B), as opposed to ten (10) years under the enhancement provisions contained in 21 O.S.Supp.1982, § 801, of the Robbery With a Dangerous Weapon statute. Appellant contends that his sentence should be modified to the minimum under Section 801, due to the failure of the trial court to instruct pursuant to Section 801. The State concedes that the trial court erred in instructing under Section 51 as opposed to Section 801, but asserts that any error was waived by the appellant's failure to object or submit requested instructions. Appellant candidly concedes that trial counsel failed to object or submit requested instructions, but asserts that the error was fundamental, because the instructions given failed to state the applicable law. As a general proposition, we agree that "[w]here the appellant fails to object to instructions given and does not submit requested instructions, and where the instructions given adequately covered the subject matter of inquiry, any error was waived." Battles v. State, 732 P.2d 480, 482 (Okla.Crim.App.1987) (emphasis added). In the case at bar, however, we agree with appellant that the instructions given failed to state the applicable law and thus did not adequately cover the subject matter of inquiry. For this reason, we find that the error was of a fundamental nature going to the foundation of the case with regard to the second stage instructions on punishment. Compare Spencer v. State, 736 P.2d 994, 995 (Okla.Crim.App.1987). Therefore, the failure to make a proper objection under such circumstances does not preclude this Court from taking notice of the error. See 12 O.S.1981, § 2104(D).
We begin with the applicable language contained in the second paragraph of 21 O.S.Supp.1982, § 801, which provides as follows:
Upon conviction [for Robbery With a Dangerous Weapon], any person guilty of three (3) separate and distinct felonies, in violation of this section shall suffer punishment by imprisonment for life, in the State Penitentiary, or for a period of time of not less than ten (10) years, and it is mandatory upon the court to impose no less than the minimum sentence of ten (10) years. The sentence imposed upon such person shall not be reduced to less than ten (10) calendar years, nor suspended, nor shall any person be eligible for probation or parole or receive any deduction from his sentence for good conduct until he shall have served ten (10) calendar years of such sentence.
Appellant contends that the specific enhancement provisions of Section 801 are controlling in the instant case. For the following reasons, we agree. First, the appellant was convicted of three (3) separate and distinct robberies with a dangerous weapon in violation of Section 801, thus triggering the specific enhancement provisions of Section 801. See Sealy v. State, 738 P.2d 521, 524 (Okla.Crim.App.1987) (Opinion on Rehearing). Second, specific provisions for punishment control over general provisions. See 21 O.S.1981, § 11. Third, we have held that specific enhancement statutes, where applicable, control over general enhancement statutes. See Spencer v. State, 736 P.2d 994, 995 (Okla.Crim.App.1987); Faubion v. State, 569 P.2d 1022, 1025 (Okla.Crim.App.1977). Fourth,...
To continue reading
Request your trial
-
Fite v. State, F-89-353
...failed to object to the enhancement instructions, fundamental error occurred when the wrong enhancement statute was used. Ellis v. State, 749 P.2d 114 (Okl.Cr.1988). Despite this error, he only received a sentence of twenty years imprisonment, which is the minimum sentence he would have rec......
-
Turner v. State
...used to enhance the sentence of Appellant Turner consisted solely of two (2) convictions for Robbery with Firearms. In Ellis v. State, 749 P.2d 114, 116 (Okl.Cr.1988), we held that when the defendant has been convicted of three (3) separate and distinct robberies in violation of Section 801......
-
Scott v. State, F-89-320
...is fundamental error which can not be waived and which may be corrected when raised for the first time on appeal. See Ellis v. State, 749 P.2d 114, 116 (Okl.Cr.1988). The jury should have been instructed under 63 O.S.Supp.1986, § 2-401(B)(2) that the possible sentence was not less than two ......
-
Mcintosh v. State Of Okla., F-2009-212.
...trial court erred by instructing the jury that the sentencing range was thirty years to life. See Ellis v. State, 1988 OK CR 9, ¶ 3, 749 P.2d 114, 115 (holding that jury instruction misstating law with regard to punishment range is fundamental error, now referred to as plain error per Simps......