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Kennedy v. State4/19/2005
reached but for the wrong reasoning. See Cooper v. Parker-Hughey, 1995 OK 35, 28, 894 P.2d 1096, 1101. However, in this case, the parties and the trial court incorrectly perceived the scope and limitations on the court's power to review the revocation.
As this Court set out in its ruling above, the district court erred by setting aside the revocation based upon the record on whether Kennedy should receive a modification to the revocation. However, before there can be a revocation under Section 6-205(A)(6), there must exist a conviction. The existence of a conviction is the necessary requisite of the revocation and its existence must be fully litigated in the district court and in accord with the views expressed herein. The appellate court will not make first instance determinations of disputed issues as that is the function of the district court. Bivins v. State ex rel. Oklahoma Mem. Hosp., 1996 OK 5, 19, 917 P.2d 456, 464.
Therefore, the judgment of the district court is reversed and the cause is remanded for further proceedings in accord with this Opinion.
REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN ACCORD WITH THIS OPINION.
GOODMAN, P.J., and STUBBLEFIELD, J., concur.
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