Pickens v. State

LUMPKIN, Judge,

specially concurring:

While I agree that this case should be reversed and remanded to the district court for a rehearing, I write separately to further address the State’s burden to “offer strict proof of the finality” of a predicate judgment and sentence. The minimum *599standard for strict proof of the finality of a conviction can be met by the introduction of a certified or authenticated judgment and sentence together with a certified or authenticated copy of the docket sheet showing whether the Defendant has perfected a direct appeal of the conviction and if so perfected, whether a final disposition has been made.

It should also be noted that the court’s application of 22 O.S.1981, § 991b merely deletes the requirement of a bifurcated revocation proceeding and allows the trial court to adjudicate all issues in one hearing. The probationer will continue to receive a written notice of the claimed violations and a list of witnesses at his initial appearance on the application to revoke. Further, the minimum due process requirements set forth in Morrissey must continue to be met. I agree with the court that the application of “[T]he statutory mandate of § 991b that a revocation hearing must be held within twenty (20) days of arrest on the revocation application gives a probationer greater protection of his liberty interest than Morrissey and Gagnon provide.” See infra P. 3.

PARKS, Presiding Judge, concurring in part, dissenting in part:

Upon further reflection, I agree Scott v. State, 734 P.2d 326 (Okla.Crim.App.1987), is inconsistent with prior and subsequent caselaw, Majority, at 598, and should be overruled. The State failed to introduce strict proof of the finality of the judgment and sentence relied on to revoke appellant’s suspended sentence; thus, the revocation order must be vacated. See Sams v. State, 758 P.2d 834, 835 (Okla.Crim.App.1988).

I strongly disagree, however, with the majority’s elimination of preliminary hearings in revocation proceedings. First, this issue is not properly before the Court, because appellant waived it by failing to request it. Powell v. State, 745 P.2d 1180, 1182 (Okla.Crim.App.1987). Second, because appellant was already in custody on a matter unrelated to the revocation hearing, Woods v. State, 526 P.2d 944 (Okla.Crim.App.1974), is not even applicable here. See Woods, 526 P.2d at 949 (“... the offense ... was the primary basis for the revocation and the evidence adduced at the revocation hearing centered upon this offense.”). I would continue to adhere to the well-reasoned Woods case and its progeny. Accordingly, I dissent to that portion of the opinion.