Lawson v. State

• Decision Date: 23 June 1971
• Docket Number: No. A--16352,A--16352
• Parties: Edward Wayne LAWSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 759

486 P.2d 759

Edward Wayne LAWSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--16352.

Court of Criminal Appeals of Oklahoma.

June 23, 1971.

Syllabus by the Court

1. A felony conviction is proven with the admission of a properly certified judgment and sentence, and proper identity of person.

2. A 'rap sheet' or police report of arrests, investigations, convictions, etc., on an individual is inadmissible and incompetent evidence to prove a felony conviction.

3. A public document or report of public officials must be properly certified as required by statute before it can be admitted into evidence. 12 O.S. §§ 499, 502, 1705.01.

An appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.

Edward Wayne Lawson was convicted of Unlawful Possession of Stimulant and sentenced to Three (3) Months in jail upon revocation of deferred judgment and sentence, and appeals. Reversed and remanded.

Charles C. Yon, Oklahoma City, for plaintiff in error.

Larry Derryberry, Atty. Gen., Paul Ferguson, Asst. Atty. Gen., for defendant in error.

NIX, Judge:

This is an appeal from judgment and sentence on conviction (22 O.S.Supp.1970, § 1051) on advancement of deferred sentencing (22 O.S.Supp.1970, § 991c).

Plaintiff in error, Edward Wayne Lawson, hereinafter referred to as defendant, was charged by information filed August 24, 1970, in the District Court of Cleveland County, Case No. CRM--70--1231, with Unlawful Possession of Stimulant, that being 88 tablets of methamphetamine. On September 4, 1970, defendant, while represented by counsel, entered a plea of guilty to this charge. Judgment and sentence was deferred and the defendant was released on One (1) Year probation. On October 30, 1970, a hearing was held on the District Attorney's Motion to Advance Judgment and Sentence. After hearing the evidence, the trial court found that defendant had violated the terms of his provation by associating with a convicted felon, one Charles Dale Coslow. Thereupon, the court imposed judgment and sentence, with punishment fixed at three months in the county jail, and this appeal perfected therefrom.

One of the conditions of defendant's probation was that he would not 'associate with ex-convicts.' The District Attorney's Motion to Advance and Set Hearing alleged that defendant violated his probation, as he 'was seen in the company of Charles Dale Coslow, a convicted felon' on October 26, 1970. At the hearing to revoke the deferred judgment and sentence, Oklahoma City Police Officers Grissom and Minor testified that on October 26, 1970, at about noon, they followed a 1963 Cadillac for approximately twelve blocks, and stopped it for failure to signal for a right turn. The officers identified Charles Coslow as the driver, and the defendant as the passenger. Coslow was given a traffic citation, and the pair was detained while a check was run with headquarters for any outstanding warrants. Finding none, and after 25 minutes, they were released.

Over defendant's objection, State's Exhibit One was admitted. This exhibit was a copy of the Oklahoma City Police Department record sheet on Charles Coslow, containing information on his police contacts, including arrests, investigations, and convictions. Defendant objected because the copy was not certified, and amounted the hearsay. On this evidence, the trial court made the finding that defendant had knowingly associated with Coslow, who was a convicted felon, and thereby violated his probation.

On appeal, defendant contends (1) that the information is defective because it does not allege the drug possessed by defendant produced a stimulating effect; (2) that the State did not follow the procedures of 57 O.S.Supp.1970, § 517, for probation violators to be arrested on a warrant issued by the Deputy Director of the Division of Probation and Parole of the Department of Corrections; and, (3) that the trial court's finding was based on incompetent evidence.

Title 63, O.S.1961, § 465.12, subd. B, makes unlawful the possession of a stimulant, unless such was obtained by prescription of a practitioner. Title 63, O.S.1961, § 465.11(b), defines 'stimulant' as any drug consisting of methamphetamine which 'has a stimulating effect on the central nervous system.' Title 63, O.S.1961, § 465.19, makes a violation of § 465.12 subd. B a misdemeanor, punishable on conviction with imprisonment in the county jail for not more than one year, or fine of $500.00, or both imprisonment and fine.

It is true the instant information does not allege the drug possessed by defendant had a stimulating effect on the central nervous system. However, we are of the opinion that this is a matter of evidence to be proven by the State, and that omission does not render it defective where there was no defense motion to quash prior to entering a plea on the merits.

As to the procedure to apprehend a probation violator, this Court has already held that 57 O.S.Supp.1970, § 517, is not an exclusive procedure, and that a District Attorney may initiate the proceeding. Gore v. State, Okl.Cr., ...