Mathues v. State

1996 OK CR 29, 925 P.2d 64, 67 O.B.A.J. 2615, 1996 Okla. Crim. App. LEXIS 44, 1996 WL 506584

• Court: Court of Criminal Appeals of Oklahoma
• Decided: July 10, 1996
• Docket: No. F-95-781
• Status: Published

Opinions

SUMMARY OPINION

CHAPEL, Vice Presiding Judge.

Alvin Dean Mathues was tried by a jury and convicted of Delivery of Cocaine in violation of 63 O.S.1991, § 2-401 (Count I); and Receiving or Acquiring Proceeds Derived from Illegal Drag Activity in violation of 63 O.S.Supp.1994, § 2-503.1 (Count II), all After Former Conviction of a Felony, in the District Court of Tulsa County, Case No. CF-95-748. In accordance with the jury’s recommendation, the Honorable Jesse S. Harris sentenced Mathues to fifteen years imprisonment on each count. Mathues has perfected his appeal of these convictions.

Mathues raises the following propositions of error in support of his appeal:

I. Convictions for unlawful delivery of a controlled drug and receiving or acquiring proceeds derived from illegal drug activity are prohibited by OHahoma’s prohibition against multiple punishments for single acts and the double jeopardy clause;

II. The conviction for receiving or acquiring proceeds derived from illegal drug activity must be set aside because the State’s evidence directly proved that the acquired money was not drug proceeds;

III. The trial court erred in refusing to instruct on the defense of entrapment;

IV. The legal instructions in the punishment stage lacked any description of the elements to be found by the jury;

V. The jury verdict of punishment in Count II fails to state an ascertainable verdict; and

VI. The Judgments and Sentences erroneously describe the convictions, and should be remedied by remand for an order nunc pro time.

After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that Propositions I and VI have merit.

In Proposition I, Mathues claims his convictions for unlawful delivery of a controlled drug and receiving or acquiring proceeds derived from illegal drug activity are prohibited by OHahoma’s prohibition against multiple punishments for single acts. As a result of committing the single act of selling a rock of cocaine for $20, Mathues was charged with and convicted of two separate crimes, delivery of cocaine and receiving or acquiring proceeds derived from any transaction prohibited under the Uniform Controlled Dangerous Substances Act. OHahoma prohibits punishment of a single act or omission under more than one provision of the criminal code, even where the act may be punishable under several different provisions.¹ In Hale v. State2 this court held:

“§ 11 provides a clear legislative statement of intent to be used where a defendant has received multiple punishments in a single trial for offenses arising from the same conduct. If a single criminal act gives rise to offenses which are ... a means to another ultimate objective ... or are incidents or facets of some other offense, that conduct may not be punished under more than one statute.”³

Although the elements for unlawful delivery and receiving or acquiring derived proceeds differ, Mathues unquestionably committed a single criminal act in selling Officers Gwin and Painter a rock of cocaine. The issue before this Court is whether Mathues has been punished twice for one criminal act where both charged offenses were incident to one objective. The answer here must be yes: Mathues was punished twice for engaging in one cocaine sale. Count II is remanded with instructions to dismiss.

The State agrees with Mathues’s Proposition VI claim that the Judgments and Sentences incorrectly reflect two prior offenses rather than the one relied on at trial. Count I is remanded for correction by an Order Nunc Pro Tunc, which should reflect that Mathues has been convicted of Unlawful Delivery of Controlled Drug After Former Conviction of a Felony.

DECISION

The Judgment and Sentence of the trial court as to Count I is AFFIRMED and REMANDED for an Order Nunc Pro Tunc correcting the Judgment and Sentence. The Judgment and Sentence as to Count II is REMANDED with instructions to DISMISS.

JOHNSON, P.J., and LUMPKIN, J., specially concur and file opinions. LANE and STRUBHAR, JJ., concur.

1 . 21 O.S.1991, § ll.

2 . 888 P.2d 1027 (Okl.Cr.1995).

3 . Hale, 888 P.2d at 1029. The State’s brief appears to misunderstand the holding in Hale, which neither expands § 11 nor obliterates the use of the "same elements” test where appropriate. The State's argument against Hale is also inapplicable to this case, where we have not a criminal course of conduct but a single criminal act.