Platt v. State

LUMPKIN, Presiding Judge,

concur in results.

1 1 I concur in the results reached by the Court in this case, however I do not agree with the Court's interpretation of 68 O.S. 2001, § 2-410.

T2 I cannot find any basis to limit the application of the "provided, that ..." at the end of the statute to only that period during which the deferred sentence is in effect. It appears the Court has overlooked the Legis*201lative intent consistently expressed in the statutory language. The Legislature clearly wants to give true first time offenders a chance at probation that will not affect their future job opportunities but will allow them to be treated as a subsequent offender if they commit a future crime.

T8 This intent can be found in the choice of words used in the statute. First, the language provides

discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualification or disabilities imposed by law upon conviction of a crime.

However, the statute then says that a "discharge and dismissal under this section may occur only onee with respect to any person." So, the Legislature is making it clear this is a one time opportunity for an individual to clean up their act.

T4 The Legislature then proceeds to amplify what it means regarding use of the plea for "disqualifications or disabilities imposed by law". It specifically states:

Any expunged arrest or conviction shall not therefore be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire or any other public or private purpose;

In other words, there is a limitation to which the protection from a prior plea and deferment applies. The operative language follows immediately

provided, that any such plea of guilty or finding of guilt shall constitute a conviction of the offense for the purpose of this act or any other criminal statute under which the existence of a prior conviction is relevant.

The intent is clear, a defendant can receive one deferred sentence for a drug offense and it will not impact that person's ability to get a job, license, or even answer a questionnaire, but if that person commits another crime, they ean be treated as a subsequent offender. The statute reflects the classic carrot and stick approach of providing an opportunity and inducement to become a productive, law abiding citizen, but if that opportunity is not taken then punishment can follow. The statute does not provide any limitation of time to which this provision applies. This "provided, that," focuses on the plea of guilty or the finding of guilt as the acts that are treated as the prior conviction and it appears that even an order of expungement does not preclude the plea or finding to be used as a prior conviction. The only limitation would appear to be in the provisions of 12 0.S$.2001, § 2609, and 21 O.8.Supp.2007, § 51.1(A), that limits use of prior convictions to those occurring within the last ten (10) years, or ten (10) years from the completion of a sentence.

15 I agree with the Court's finding that Appellant is guilty of the offense charged. I do not agree with the time restrictions the Court seeks to legislate into the application of this statute.

T6 There is one possible conflict in the statute, but it does not affect the decision in this case. That conflict comes about at the last of the first paragraph when the language first says the discharge and dismissal under this section "shall not be deemed a conviction for purposes of this section" and then turns around in the next sentence and says "discharge and dismissal under this section may occur only once with respect to any person." The question of whether a person is eligible to receive more than one deferral of sentence in a drug case is not at issue in this case and we leave that question to another day.