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Stewart v. State3/9/1999
without entering a judgment of guilt and with the consent of the defendant, defer further proceedings upon the specific conditions prescribed by the court . . ." 22 O.S.Supp.1996, § 991c(A). The ability of a court to "defer" a judgment of guilt and sentencing "shall only apply to defendants not having been previously convicted of a felony offense." 22 O.S.Supp.1996, § 991c(F).
In this case, it appears the District Court of Oklahoma County imposed a hybrid sentence upon Petitioner when he entered his plea which attempted to incorporate certain elements of a deferred judgment and a suspended sentence into a sentence of night-time incarceration. If we construe the provisions for night-time incarceration as a form of suspended or deferred sentence, the sentences imposed upon Petitioner would be illegal as the record reflects that Petitioner admitted he had been, prior to his pleas in Case No. CRF 97-1817, convicted of two or more felonies. See Bumpus v. State, 1996 OK CR 52, 12-16; 925 P.2d 1208, 1211-1212; 22 O.S.Supp.1996, § 991a(C); 22 O.S.Supp.1996, § 991c(F). In addition, a sentence of night-time incarceration is not authorized by the plain language of the statute for anything but "felony" convictions. 22 O.S.1991, § 991-a2.
While we appreciate the District Court's efforts to devise a hybrid night-time incarceration plan which incorporates a type of deferral of sentencing, we find that the court acted beyond its statutory authority in this case in several respects: first, Petitioner was not eligible for either a deferred or suspended sentence; second, the language of the statute says nothing which allows a court to postpone sentencing until a date in the future under a condition that the defendant complete the number of nights imposed; third, the statute cannot be used to sentence a defendant to a term of years to be satisfied by serving "x" number of nights in the county jail; and fourth, the statute does not provide for night-time incarceration for any misdemeanor convictions. The plain language of the statute only provides that the person convicted may be sentenced "to incarceration in the county jail for a period of one or more nights or weekends with the remaining portion of each week being spent under probation, in lieu of any other kind of imprisonment prescribed by law for that particular felony." 22 O.S.Supp.1996, § 991a-2 (emphasis added).
We therefore agree with Petitioner that the District Court was without authority to sentence him to the night-time incarceration program because such a sentence, which includes probation, is clearly a form of suspended sentence for which Petitioner was ineligible. Further, the statute does not authorize night-time incarceration for misdemeanor offenses.
We believe that Petitioner's Writ of Habeas Corpus, construed as an Application for Post-Conviction Relief, should be granted. Petitioner's sentence to a ten year term of imprisonment for Count I in the DOC as a result of his failure to complete his night-time incarceration sentence as ordered was a voidable sentence not authorized by law, because Petitioner had two or more prior felony convictions and was therefore not eligible for a sentence of night-time incarceration or any form of suspended or deferred sentence in the first place. The remaining four counts were also voidable. As misdemeanor convictions, they do not fall within the perimeters of 22 O.S.1991, § 991-a2. Therefore, we cannot simply order Petitioner be released from DOC custody and returned to Oklahoma County to complete the night-time incarceration sentence. Rather, we find Petitioner's Judgment and Sentences should be vacated, and Petitioner should be returned to Oklahoma County and given the oppo
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