Goodwin v. State, F-85-232

• Decision Date: 17 December 1986
• Docket Number: No. F-85-232,F-85-232
• Citation: 730 P.2d 1202
• Parties: James L. GOODWIN, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1202

730 P.2d 1202

James L. GOODWIN, Appellant, v. STATE of Oklahoma, Appellee.

No. F-85-232.

Court of Criminal Appeals of Oklahoma.

Dec. 17, 1986.

M.L. Addicott, Wyatt, Addicott & Austin, Ada, for appellant.

Michael C. Turpen, Atty. Gen., Mary F. Williams, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

James L. Goodwin, hereafter referred to as appellant, was tried by a jury in Pontotoc County District Court, in Case No. CRF-84-36, on October 24, 1984, on two counts of Knowingly Concealing Stolen Property, under 21 O.S.1981, § 1713, and two counts of Altering Automobile Number Plates, under 47 O.S.1981, § 4-107(a), after two or more former felony convictions. The jury assessed punishment at twenty (20) years under the custody and control of the State Department of Corrections on each count. From those convictions appellant lodged this appeal. At the conclusion of the State's case, appellant demurred to the State's evidence, which was overruled. Appellant elected to present no witnesses and rested. This being a bifurcated trial on after former convictions charges, appellant offered to testify himself concerning the time his former sentences were satisfied, but the trial judge refused to allow the testimony. Appellant then moved to include in the second stage proceedings all of the record made on his motion to quash heard October 11, 1985, and demurred to the State's evidence and rested on the second stage of the proceedings.

It was alleged in the information that appellant had in his possession two stolen trucks. One was a 1982 Mack truck and the other was a two-ton International Harvester Truck. It was also alleged that on the 1982 Mack Truck, the identification number shown on the driver's door was different from the VIN number shown on the original factory plate welded on the truck frame. The VIN number shown on the door was from a 1976 truck owned by appellant. On the 1980 Mack Truck, a metal bracket had been welded over the spot on the engine where the vehicle identification number should have been. No number was visible. The identification number shown on the driver's door showed a number registered to a 1972 Two Ton International Harvester truck, shown to belong to appellant.

Appellant's first assignment of error asserts that the trial judge committed error when he denied appellant's request for a continuance on the first day of trial. Appellant asserted that he desired to change attorneys and that the attorney he wished to represent him had not had sufficient time to prepare for trial and therefore the denial of the motion for continuance prejudiced him. The trial judge conducted a hearing to ascertain sufficient facts to satisfy himself that the retained attorneys who had been representing appellant were present and were sufficiently prepared and ready to conduct the trial. Also, insofar as the jury panel had been drawn for voir dire of the trial jury, that the State's witnesses were present, one of whom was from out-of-state and another who had travelled some two hundred miles to be present, was sufficient reason to deny appellant's motion for continuance.

A motion for continuance of trial is directed to the sound discretion of the trial judge. Henegar v. State, 700 P.2d 659 (Okl.Cr.1985); Renfro v. State, 607 P.2d 703 (Okl.Cr.1980). In this case it is clear from the record that the trial judge did not abuse his discretion when he denied the continuance; nor, has appellant shown how he was prejudiced.

In his second assignment of error, appellant asserts that the former convictions should not have been used because they were more than ten years old and fell under the provisions of 21 O.S.1981, § 51(A). Part B to the information alleged that appellant had two former felony convictions: CRF-69-107 in Pontotoc County for Knowingly Concealing Stolen Property, for which his sentence was modified on appeal to three years; and CRF-69-68, in Hughes County for Second Degree Burglary, for which he was sentenced to four years.

21 O.S.1981, § 51(A) provides a limitation on the use of former convictions and provides:

No person shall be sentenced as a second and subsequent offender under Section 51 of Title 21, or any other section of the Oklahoma Statutes, when a period of ten (10) years has elapsed since the completion of the sentence imposed on the former conviction; provided, said person has not, in the meantime, been convicted of a misdemeanor involving moral turpitude or felony.

It is appellant's contention since he was granted a parole from the Pontotoc County sentence in CRF-69-107, on June 5, 1973, which caused his actual release on Parole from the Oklahoma Prison System on August 30, 1973, that was the date from which the ten year period is compiled and therefore more than ten years had elapsed. It appears to be his contention that notwithstanding the fact that appellant was paroled to a federal detainer that the Oklahoma Department of Corrections lost complete care, custody and control over appellant and hence the sentence was satisfied. He cites Nipps v. State, 576 P.2d 310, 312 (Okl.Cr.1978), which states: "We agree with the defendant that he satisfied his sentence when the Department of Corrections relinquished their control of the defendant and unconditionally released him." When appellant was paroled to the federal detainer he was not unconditionally released. See Ex parte Walford, 74 Okl.Cr. 138, 124 P.2d 264 (1942). Attached to the parole were certain conditions that appellant was required to meet, otherwise his parole would be subject to revocation. In that event he would be returned to the Department of Corrections to satisfy the sentence from the date parole was granted.

This Court held in Clonce v. State, 588 P.2d 584 (Okl.Cr.1979), which we now approve, that the burden is upon the defendant to come forward with evidence to show that the sentence of a former conviction has been satisfied for more than ten years and is not admissible. In the instant case such proof was not provided the trial court. Appellant's contention that his satisfaction date was the date of his parole is without merit.

In his third assignment of error appellant asserts that appellant suffered prejudice by the trial judge's failure to sever the four counts. Appellant cites Kramer v. State, 97 Okl.Cr. 36, 257 P.2d 521 (1953) to support his position, but that case was decided prior to the enactment of statutes authorizing the joinder of counts in one information. In the instant case all four counts allege that on January 3, 1984, the stolen property was discovered and that the vehicle numbers were altered. See 22 O.S.1981, § 436, which was enacted in 1968. Also...