Fite v. State, F-89-353

• Decision Date: 21 December 1993
• Docket Number: No. F-89-353,F-89-353
• Citation: 873 P.2d 293
• Parties: Larry Don FITE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 293

873 P.2d 293

Larry Don FITE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-89-353.

Court of Criminal Appeals of Oklahoma.

Dec. 21, 1993.

Order Denying Rehearing in Part and

Granting Rehearing in Part March 8, 1994.

Bryan County District Court, Case No. CRF-88-89; Rocky L. Powers, District Judge.

James O. Braly, Durant, Trial Counsel and Lisbeth McCarty, Asst. Appellate Indigent Defender, Norman, Appellate Counsel, for appellant.

Mary Faulkner, Asst. Dist. Atty., Durant, Trial Counsel, and Susan Brimer Loving, Atty. Gen. of Oklahoma and Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, Appellate Counsel, for appellee.

OPINION

CHAPEL, Judge:

Larry Don Fite was charged in Bryan County District Court, Case No. CRF-88-89, with Unlawful Cultivation of Marijuana, After Two or More Felonies, in violation of 63 O.S.Supp.1987, § 2-509. Fite was tried by a jury before the Honorable Rocky L. Powers, District Judge. The jury returned a verdict of guilty and recommended he be sentenced to twenty (20) years imprisonment and fined $100,000. The trial court sentenced him in accordance with the jury verdict. From this Judgment and Sentence, he has perfected this appeal. We affirm the Judgment and Sentence, but modify the fine imposed from $100,000 to $10,000 for the reasons set forth below.

On March 9, 1988, Bryan County police officers set up a surveillance of property owned by Fite's father. There were two buildings on the property, a cinder block structure, which the police referred to as a well house, and a metal storage building. On the night of March 9, Officer Mark Rackley, without a search warrant, entered the property and looked through the window of the well house. Rackley observed what he believed to be marijuana plants inside the well house.

The next day, on March 10, Rackley observed Fite exit the well house carrying a green leafy plant. Rackley and three other officers entered the property, arrested Fite, and conducted a warrantless search of both buildings. The officers seized plants inside the two buildings and also seized plants and other related materials outside the buildings. These plants were tested by the Oklahoma State Bureau of Investigation and determined to be marijuana.

In his first assignment of error, Fite argues the trial court erred in enhancing his sentence under 63 O.S.Supp.1987, § 2-509. Section 2-509 provides that any persons convicted under § 2-509 shall be punished by a fine of not more than $50,000 and imprisonment of not more than ten (10) years. Section 2-509 also provides that any person convicted of a subsequent offense under § 2-509 shall be punished by a term of imprisonment and a fine of not more than twice that otherwise authorized. The trial court enhanced Fite's sentence under § 2-509. However, because his prior convictions were not offenses under § 2-509, Fite's sentence in this case should not have been enhanced under that statute. Instead, the trial court should have enhanced his sentence under 21 O.S.Supp.1985, § 51(B), which is the general enhancement statute for defendants who have been convicted of prior felony offenses.

The State concedes that Fite's prior felony convictions did not arise under § 2-509 and that he should not have been sentenced under that statute. However, the State argues (1) Fite did not object to the error, and the error is not fundamental; and (2) the error is harmless. We agree in part and disagree in part with the State's contention.

Although Fite 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 received under § 51(B). Thus, any error as to the term of imprisonment imposed was harmless, and the sentence should not be modified.

The fine imposed is a different matter. Section 2-509 authorizes a fine of $100,000. Section 51(B) does not authorize a fine. Since the fine provision of § 2-509 cannot be combined with the imprisonment provisions of § 51(B), the $100,000 fine cannot stand. See Gaines v. State, 568 P.2d 1290, 1294 (Okl.Cr.1977).

However, this conclusion does not mean Fite is exempt from the imposition of any fine. Section 64 of Title 21 is the general statute governing the imposition of fines. Section 64 provides, in pertinent part:

(B) Upon a conviction for any felony punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding Ten Thousand Dollars ($10,000.00) in addition to the imprisonment prescribed.

Since § 51(B) does not prescribe a fine, the fine provision of § 64 is applicable.

Section 64 authorizes the "court" to impose the fine, not the jury. In Brown v. State, 314 P.2d 362, 366 (Okl.Cr.1957), this Court concluded the language in § 64 ¹ limiting the authority to impose the fine to the court ran afoul of 22 O.S., §§ 926, 927, and 928, which provide that the jury shall, upon request of the defendant, assess punishment. To bring these statutes into harmony and to protect the statutory right to jury sentencing, the Brown Court held that a trial court had authority to impose a fine only where "(1) a jury has been waived and the case is tried to the court; (2) where the jury fails or refuses to assess the penalty; or (3) on a plea of guilty by the defendant." Id. at 366. Finally, Brown held that where a defendant is tried and sentenced by the jury, the court may not impose a fine under § 64.

The result of Brown is to create the anomalous situation where a defendant who pleads guilty can be punished more harshly than a defendant who is convicted by a jury. This discrepancy in treatment makes no sense. Further, since the Court's decision in Brown, the Oklahoma legislature has enacted 22 O.S. § 991a governing the trial court's sentencing power. Section 991a grants the trial court certain discretion in sentencing. For example, § 991a provides that after trial, the court may suspend all or part of a defendant's sentence and order a defendant to pay restitution or reimburse a state agency for medical expenses or perform community service. 22 O.S. § 991a(A)(1)(a), (b), (c), (d). Based on the plain language of § 991a, these sentencing options rest in the hands of the trial court and not in the hands of the jury.

Section 991a demonstrates the legislature's intent to allow the trial court, in certain circumstances, to impose additional, or alternative, sanctions as prescribed by law. The legislature established the statutory right of jury sentencing and the legislature has the power to modify or alter that right. Like § 991a, § 64 should be given effect and the trial court should be allowed to impose an appropriate fine under § 64 even when the defendant is sentenced to a term of imprisonment by the jury. Of course, nothing in § 64, or in this opinion, entitles the trial court to deviate from the term of imprisonment actually imposed by the jury. Accordingly, we overrule Brown v. State, 314 P.2d 362, 366 (Okl.Cr.1957), to the extent that it is inconsistent with this opinion. Further, we modify the fine imposed on Fite from $100,000 to $10,000, the maximum permissible fine under § 64.

In his second assignment of error, Fite argues the trial court erred when it failed to grant his request for a continuance. We find this proposition to be without merit. Title 12 O.S.1981, § 668 provides that a motion for a continuance can be made only upon an affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to obtain it. In Waterdown v. State, 798 P.2d 635, 638 (Okl.Cr.1990), this Court held that the provisions of § 668 must be met before the trial court grants the continuance. Waterdown did not prohibit a judge from granting sufficient time to prepare an affidavit based on "new evidence, surprise or other valid reason." Id.

In the present case, Fite orally moved for a continuance, but did not offer the required affidavit. Rather he simply produced a doctor's note stating his father, whom he wished to call as a witness, was ill. Fite argues he did not have time to prepare the required affidavit. We disagree with Fite's claim and find he had sufficient time to prepare the affidavit. Further, there was no indication of surprise, new evidence, or other valid reason which would warrant granting him additional time to prepare the affidavit. Under the facts of this case, the trial court did not abuse its discretion in denying his motion.

In his third proposition of error, Fite contends the trial court erred in failing to suppress evidence seized during a warrantless search of the buildings on his father's property. The first question this court must address under this proposition of error is whether Fite had standing to raise this issue. The trial court, relying on Champeau v. State, 678 P.2d 1192 (Okl.Cr.), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 183 (1984), found he lacked standing. However, one of the elements of the offense of cultivation of marijuana is that the accused "own or control the lands." Both the trial court when it bound him over for trial and the jury when it convicted Fite, had to find this essential element of ownership or control. Standing is met when a defendant has a clear possessory interest in the land. Dixon v. State, 737 P.2d 942 (Okl.Cr.1987). Fite has met this showing.

The second issue is whether the warrantless search of the buildings was illegal. The police entered the buildings on Fite's property without a warrant and seized a large number of marijuana plants from the buildings. The State argues the search of the buildings was permissible under the open fields doctrine, which allows police officers to search open fields without a warrant. The State misconstrues the open fields doctrine.

Clearly,...