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The defendant pled guilty to distribution of a controlled dangerous substance. He received a four-year deferred sentence, subject to terms and conditions of probation. Just before the end of his term of probation, the state filed an application to accelerate deferred sentence. The application alleged that the defendant committed a new crime of domestic assault battery. Obviously, this person needed the best Tulsa criminal defense attorney.
At the conclusion of the hearing on the state’s application, the judge sentenced the defendant to four years. The defendant appealed. He raised two propositions of error. First, he argued that the judge abused its discretion in accelerating his sentence because stay present insufficient evidence to support the claim that he committed the offense of domestic assault and battery. Secondly, he argued that the sentence was excessive and should be modified. The Oklahoma Court of Criminal Appeals agreed with the trial court, said Tulsa criminal defense attorney Stephen Cale.
The states application alleged that the defendant violated the terms and conditions of his probation after he was charged with domestic assault battery. The defendant argues that the state had insufficient evidence to show by a preponderance of the evidence that he committed the offense. The state claimed that defendant and the victim, his former girlfriend, got into an argument. The two reconciled and they return to the home of a shared. A couple again argued, but this time the defendant took his formal girlfriends phone to prevent her from calling her mother. He would not return the cell phone. The girlfriend tried leave, but the defendant would not let her leave the house. The ex-girlfriend alleged that the defendant bit her on the shoulder.
Eventually, the couple fell sleep and when the girlfriend woke up, she found her phone and called her mother to pick her up. That night, the girlfriend’s parents took her back to the home to get her close. The defendant arrived at the house while the former girlfriend and her parents were there. Her stepfather called the police.
The former girlfriend’s testimony at the acceleration hearing was consistent with the state delegations. On cross-examination, the formal girlfriend admitted that she and the defendant argued. After first denying that she the former girlfriend admitted that she bit him on the finger prior to him biting her on the shoulder. The woman was five months pregnant at the time of the altercation.
The state admitted a photo into evidence that showed a mark on the woman’s left shoulder that was a result of the bite. The defendant argued that she and the woman engaged in a tussle that she initiated by hiding him on the finger. Therefore, his biting her on the shoulder retaliation was not unlawful because she consented to the fight. The defendant cites no authority support his claim that consent is a defense to a charge of assault and battery.
Tulsa criminal defense attorney Stephen Cale said that the Oklahoma Court of Criminal Appeals has consistently held that an acceleration proceeding does not require the same broad scope of due process protection is a criminal proceeding. The standard of review in an acceleration proceeding is an abuse of discretion. The appellate court found that there is more than sufficient evidence presented at the hearing to find by a preponderance of the evidence that the defendant committed the offense of domestic assault battery.
In his next argument, the defendant argued that his sentence was excessive. The state argued that the length of the defendant’s sentence was not proper for consideration within the context of an acceleration appeal. The defendant knew that the scope are reviewed and acceleration appeals limited to the validity of the acceleration order. A claim of excessive sentence on an acceleration of the deferred sentence challenges the appropriateness of the sentence. That issue is only proper for defendant appeals is judgment sentence, which requires the filing of a petition for writ was her story and compliance with procedures est. by the appellate courts rules for perfecting the same.
The defendant argues that the procedure for challenging his conviction through a certiorari appeal precludes challenges to the length of a sentence because certiorari review is limited to: 1) whether the play was knowing and voluntary; 2) whether the information was sufficient to confer jurisdiction; and 3) whether the sentence was legal. As a result, he argues that the scope a review in a certiorari appeal violates the Oklahoma Constitution state statutes. The defendant proposes that the appellate court expanded the scope of review and acceleration appeals to address excessive sentencing claims. Finding the best Tulsa criminal defense attorney is easy. Call the Cale Law Office at 918-277-4800.
In a 1991 case, the Oklahoma Court of Criminal Appeals reviewed a claim of excessive sentence presented in a certiorari appeal. The Court noted that in evaluating the validity of a guilty plea, the court is concerned only with whether the plea was entered into voluntarily and intelligently. The defendant in that case admitted that his desire to withdraw his plea was based primarily on his dissatisfaction with the sentence assessed in the case. Because the defendant there presented no compelling legal reason to find that the trial court abused its discretion when it denied his request to withdraw his plea, the appellate court affirmed the trial court’s ruling.
Tulsa criminal defense attorney Stephen Cale said that the appellate court reiterated that excessive sentence claims must be raised at the district court level and the defendant must make a proper record which allows for meaningful appellate review. If the defendant wants to contest the sentence, then the trial court should hold an evidentiary hearing and role in the application to withdraw plea within 30 days from the date it was filed. No matter may be raised in the petition forward a search or a less the same has been raised in the application to withdraw plea, which must be accompanied by records filed with the court.