Cobb v. StateCobb v. State
- Reporters:
- , , ,
- Before:
- Lumpkin
OPINION
LUMPKIN, Judge:Appellant, Henry Rena Cobb, was convicted in the District Court of Tulsa County, Case No. CRF-87-757, of Burglary in the First Degreе After Former Conviction of Two or More Felonies in violation of
The sole assignment of error relates to the use оf prior convictions for enhancement under
Where the State has improperly invoked enhancеment provisions under
In this case, Appellant showed that his two prior convictions arose when he was arrested on Deсember 9, 1985, in possession of a stolen vehicle. When his personal effects were inventoried аt the jail, he was also found to be in possession of phencycli-dine, a controlled dangerоus substance. Appellant pled guilty to charges of posses
The fact situation of the case presently before the Court is remarkably similar to the fact situation which arose in Love v. State, 675 P.2d 466 (Okl.Cr.1984). In that case the defendant was convicted of larceny of merchandise from a retailer after former conviction of two or more felonies. Two of the defendant’s prior conviсtions resulted from his arrest on a charge of forgery while in a bar. As a part of the arrest it was discovered that he was carrying a loaded weapon. He was subsequently convicted of the forgеry charge and of carrying a loaded weapon. These two convictions were used to enhance punishment in the larceny conviction. This Court determined that “the convictions stemming from thesе circumstances are not the type of interrelated convictions prohibited by
In the casе presently before the Court the Appellant’s prior felony convictions arose when he wаs arrested for possession of a stolen vehicle. Following that arrest he was found, at the. time of the book-in procedures at the jail, to be in possession of a controlled dangerous substаnce. Subsequently, the Appellant pled guilty to both the charge of possession of a stolen vehicle and the charge of possession of a controlled drug. This Court has previously ruled in Love that the сoincidence of discovery of the offense is not sufficient to meet the burden of proof which is placed upon defendants in cases of this type. The act of possession of a stolen vehicle and the fortuitous discovery of a controlled dangerous substance are not the tyрe of interrelated convictions prohibited by
In addition, the record reflects thаt the Appellant objected in camera to the admissibility of both prior felony offenses and tо the instruction on punishment for commission of two or more prior felony convictions. However, thеre was no objection to the admissibility of State’s Exhibits 4 and 5, the judgment and sentence in each prior сase, when offered at trial. (Tr. 115) Further, the Appellant failed to present any evidence which would provide a factual basis in support of those objections. (Tr. 115)
The issue of burden of proof of whether prior convictions used for enhancement purposes arise from the same transaction was discussed by this Court in Bickerstaff v. State, 669 P.2d 778 (Okl.Cr.1983). Therein this Court relied on Clonce v. State, 588 P.2d 584 (Okl.Cr.1978) which holds that a defendant has the burden to establish whether he completed the previous conviction prior to the ten (10) year limitation set forth in
In the instant case, the appellant would similarly receive a benefit if the convictions arose out of the same transаction as only one conviction would be used instead of eight. Defendants cannot receive this benefit without offering evidence whether the prior convictions were closely related. 669 P.2d at 780.
Bickerstaff thereby assigned the burden of proof in matters of this nature to the defendant as an affirmative defense.
The Appellant did not present any evidence at trial that the offenses were interrelated in such a manner as to meet the criteria set forth in
Accordingly, .the judgment and sentence is hereby AFFIRMED.