Snyder v. State

1989 OK CR 81, 806 P.2d 652, 62 O.B.A.J. 572, 1991 Okla. Crim. App. LEXIS 17, 1989 WL 146034

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 7, 1991
• Docket: F-86-684
• Status: Published

Opinions

OPINION

BRETT, Judge:

Appellant, Robert Eugene Snyder, a/k/a, Eugene Robert Snyder, was convicted by a jury of Possession of a Firearm After Conviction of a Felony, After Former Conviction of Two or More Felonies, in the District Court of Stephens County, Case No. CRF-85-292. 21 O.S.Supp.1983, § 1283; 21 O.S.Supp.1985, § 51. He was sentenced to twenty (20) years imprisonment, and appeals.

Appellant originally was also charged with Shooting with Intent to Kill. The two charges were tried to the jury with the jury returning a verdict of not guilty on the shooting allegation but guilty on the firearm possession charge. According to the testimony at trial, appellant owed some men money for a drug buy; these men were armed and had been looking for appellant for about a week. The shooting occurred when the two men found appellant at a friend’s house. The testimony was undisputed that appellant was armed with a .38 caliber gun and that he fired it in the house where the encounter took place. Appellant gave the gun to police after he turned himself in a couple of days later.

Appellant raises only one issue on appeal. He claims that the charge of felonious possession of a firearm cannot be enhanced under 21 O.S.Supp.1985, § 51, therefore a sentence of twenty (20) years is unauthorized and must be modified to a term that is within the bounds allowed by statute. See 21 O.S.Supp.1983 § 1284. Appellant and the state do not cite any cases where this court has addressed this issue directly nor do we find any. However, in Butler v. State, 442 P.2d 532 (Okl.Cr.1968), this court stated unequivocally that the Habitual Criminal Act, 21 O.S. 1981, § 51 can be applied. Although the facts recited in Butler were very scant we do find from them that the defendant was given an indeterminate sentence of four to twelve years, the twelve being two years longer than the maximum under Section 1284. The implication being that Section 51 was applied. In the case of Knight v. State, 502 P.2d 347 (Okl.Cr.1972), this court again said that Section 51 can apply, however, there is no indication in that case how the issue was formed. The punishment given in Knight was within the limits of Section 1284 without enhancement although he had four prior convictions and he was sentenced to an indeterminate sentence of not less than seven nor more than ten years. Appellant has cited other cases enforcing Section 1283 in which the defendants have had several prior convictions and in none of them have the defendants received sentences longer than the basic terms provided for in Section 1284. See Washington v. State, 481 P.2d 180 (Okl.Cr.1971); Baeza v. State, 478 P.2d 903 (Okl.Cr.1970); Carbray v. State, 461 P.2d 989 (Okl.Cr.1969). We do not find that the failure to use Section 51 with Sections 1283, 1284 means that it was ever prohibited by statute or by case law.

The other type of cases appellant has offered as authority by analogy, are cases that deal with the escape statutes where this court has said that Section 51 cannot be used to enhance since a felony conviction is presumptively an integral part of the offense. Cf. Delfrate v. State, 732 P.2d 900, 902 (Okl.Cr.1987); 21 O.S.1981, § 443. In 1988 the Legislature amended Section 443 and it is now the law that Section 51 can be used but only if there are offenses in excess of the one the defendant is serving when the escape occurs. We find that change to be a statement of public policy by the Legislature and one that can and should be applied to the issue of whether or not Sections 1283, 1284 and 51 can be applied conjunctively and if so when. We therefore find, a charge under Section 1283 cannot be enhanced by reference to Section 51 if the felony conviction relied upon is the threshold conviction needed to bring a charge under Section 1283. The rationale for this ruling is founded on the fact that the proof of at least one felony is necessary to provide one of the elements of the offense. See Williams v. State, 565 P.2d 46 (Okl.Cr.1977); Oklahoma Uniform Jury Instructions, Criminal 625. Second or subsequent convictions can be used for enhancement if they otherwise meet the requirements of Section 51 as we have explained above.

The appellant in this case had been convicted only twice before this offense therefore it was error to instruct the jury to allow them to return a sentence of twenty (20) years. See 21 O.S.1981, § 51(B). The lesser punishment enhancement rule should have been applied. See 21 O.S.1981, § 51(A)(1). In order to allow for any prejudice that may have resulted from the erroneous instructions on enhancement, we hereby modify appellant’s sentence to the minimum enhanced sentence the jury could have found appropriate if the proper instructions had been given.

We therefore find the appellant’s sentence should be modified to a term of ten (10) years. The case is therefore REVERSED and REMANDED to the District Court of Stephens County to correct the Judgment and Sentence to show appellant’s conviction is AFFIRMED and his SENTENCE is MODIFIED to ten (10) years.

PARKS, P.J., LANE, V.P.J., and LUMPKIN and JOHNSON, JJ., concur.