*1 Larry FITE, Appellant, Don Appellee. STATE
No. F-89-353. Appeals Criminal Oklahoma.
Dec. Denying Rehearing in Part
Order
Granting Rehearing Part March *2 $10,000 for the reasons set forth
below. Bryan County police
On March property up set a surveillance of father. There were two owned Fite’s property, cinder block structure, to as a which the referred house, storage building. On well and a metal Rackley, night of Mark March Officer prop- a search entered the without through the erty and looked window Rackley he be- well house. observed what marijuana plants insidе the well lieved house. 10, Rackley day, ob-
The next on March carrying a Fite exit the well house served leafy plant. Rackley green and three other Fite, property, officers entered the arrested of both and conducted a warrantless search buildings. seized inside plants The officers plants also and the two and seized outside other related matеrials plants These were tested the Oklahoma Court, Bryan County No. District Case Investigation Bureau of and deter- State Powers, CRF-88-89; Rocky L. District marijuana. mined-to be Judge. Durant, Braly, and Trial Counsel James assignment In his Fite first McCarty, Indigent Appellate Asst. Lisbeth enhancing in argues the trial court erred Norman, Counsel, Defender, Appellate O.S.Supp.1987, § 2-509. sentence under appellаnt. any provides persons 2-509 con Section § punished by victed under 2-509 shall Durant, Mary Faulkner, Atty., Asst. Dist. imprison more than and Counsel, Loving, Trial and Susan Brimer (10) years. of not than ten Sec ment more Poe, B. Atty. Gen. of Oklahoma Wellon any provides person 2-509 tion also Gen., Atty. City, Appellate Asst. Oklahoma § 2- subsequent of a under convicted offense Counsel, appellee. punished by imprison shall be a term of OPINION ment and fine of not than twice court en otherwise authorized. CHAPEL, Judge: § under 2-509. How hanced sentence Larry Bryan in charged Fite was Don ever, prior because his convictions were CRF-88-89, County No. District Case 2-509, offenses under Fite’s sentence Marijuana, Af- with Unlawful Cultivation of not have enhanced this ease should been Felonies, Two violation of ter or More Instead, under that statute. the trial O.S.Supp.1987, § 2-509. Fite was tried under 21 should have enhanced sentence Powers, jury Rocky Honorable before the 51(B), O.S.Supp.1985, general Judge. The a verdict District returned who enhancement defendants guilty sentenced and recommended he be felony prior offenses. have been convicted (20) twenty imprisonment years and fined felony prior him concedes that Fite’s The trial court sentenced State From this convictions did not arise 2-509 verdict. accordance with Sentence, been un- perfected has that he should not have sentenced appeal. Judgment and der that statute. We affirm the (1) Sentence, object modify Fite did to the (2) fundamental; “(1) is not the error is a fine error where agree been part has waived and the case is tried to harmless. We court; where the fails or part refuses with the contention. State’s penalty; plea Although object failed guilty by the defendant.” at 366. Id. Final- *3 instructions, error enhancement fundamental ly, held Brown that where defendant wrong occurred the enhancement stat when by jury, tried and sentenced the the court State, Ellis v. P.2d 114 ute was used. 749 § may impose not a fine under (Okl.Cr.1988). Despite he this The result of Brown is create to the ano- twenty years impris of received a sentence malous situation where a defendant who onment, is the minimum which sentence pleads guilty punished harshly can be 51(B). Thus, § would have received under than a jury. defendant who is convicted any imprisonment error as to the tеrm of discrepancy in This treatment makes no harmless, imposed was and the sentence Further, sense. since the decision in Court’s should modified. not be Brown, legislature the OWahoma has enacted imposed The fine is a different matter. § 22 governing O.S. 991a the trial court’s Section 2-509 authorizes a fine of sentencing power. grants Section 991a the 51(B) Section does authorizе fine. sentencing. certain in court discretion § provision of Since the fine 2-509 cannot be example, trial, § provides For 991a that after imprisonment provisions the combined with may suspend the all of part or a defen- 51(B), §of stand. the fine cannot pay dant’s to sentence order a defendant State, See Gaines v. 1294 agency or restitution reimburse a state еxpenses perform community medical or ser- conclusion not mean this does (d). 991a(A)(l)(a), (b), (c), § 22 vice. O.S. exempt imposition any Fite is from the of 991a, § the language Based on of these general of 21 fine. Section 64 Title is the sentencing options rest in the hands of the governing imposition of the fines. jury. trial court and not in the hands provides, pertinent part: Section 64 in legis Sеction 991a demonstrates the (B) felony pun- Upon any a conviction for court, lature’s intent to allow the trial in imprisonment jail any ishable in or circumstances, additional, impose certain to prison, in relation which no fine here- alternative, prescribed by or sanctions as prescribed, may impose the court a fine legislature law. The established thе statuto exceeding the offender Ten Thou- ry right legisla of sentencing and the ($10,000.00) sand Dollars in addition to the power modify ture the or alter that has prescribed. imprisonment 991a, § right. given § Like 64 should be 51(B) fine, § prescribe Since does the effect the trial court should allowed to § provision applicable. fine 64 is of § impose appropriate under 64 even impose Section 64 authorizes the “court” to defendant is to a term of when the sentenced fine, jury. course, imprisonment by jury. the In 314 not the Brown v. the noth Of (Okl.Cr.1957), § P.2d con or in ing opinion, this Court entitles the limiting §in language impris cluded the the trial court to deviate from the term of actually imposed jury. ran impose the fine to the court onment the Ac O.S., §§ afoul cordingly, which we overrule Brown v. shall,
рrovide
request
(Okl.Cr.1957),
upon
the
extent
defendant,
punishment.
bring
opinion.
the
To
that it is inconsistent with
Fur
ther,
harmony
protect
modify
these
into
statutes
and to
we
the fine
on Fite
jury sentencing,
$10,000,
statutory
per
the
the
from
maximum
Brown
held that a
had
trial court
missible fine under
construing
prescribed,
1. Brown was
an earlier version of
no fine is herein
the court
provided:
64 which
not exceed-
fine оn the offender
($200.00)
Upon
any
punishable by
Two Hundred Dollars
addition
conviction for
crime
imprisonment
imprisonment
any jail
prison,
prescribed.
relation
assignment of
second issue whether
warrant-
In his second
illegal.
search
it
less
the trial court erred when
argues
proper-
police entered the
grant
request
continuance.
failed to
large
ty without a warrаnt and seized a
merit.
proposition to be without
We find this
marijuana plants
build-
number
O.S.1981, §
mo
provides that a
Title 12
ings.
search
only upon
can be made
tion for a continuance
permissible
open
materiality
showing the
an affidavit
doctrine,
fields
which allows
expected
obtained and
evidence
open
search
fields without a warrant. The
it.
diligence
due
has bеen used
obtain
fields
State misconstrues
doctrine.
(Okl.
State, 798 P.2d
Waterdown
Cr.1990),
provisions
this Court held
Clearly,
per
fields doctrine
trial court
must be met before the
*4
police
property,
mitted the
to cross Fite’s
grants
did
the continuance. Waterdown
fields,
and
look
his
then look
the well
prohibit
judge
granting sufficient time
a
marijuana
house to determine whether
was
on “new evi
prepare
an affidavit based
growing
building.
the
United States
inside
dence,
Id.
valid reason.”
surprise
other
Dunn,
294,
1134,
v.
480 U.S.
107 S.Ct.
94
State,
(1987);
L.Ed.2d 326
Grider v.
743 P.2d
case,
orally
present
Fite
moved
the
(Okl.Cr.1987). However,
open
678
the
fields
continuance,
required
a
not offer the
did
permit
doctrine does not
the officers to enter
simply produced a doc-
affidavit. Rather he
buildings in the
a
the
field without warrant.
father,
stаting
tor’s
whom he wished
note
his
Dunn,
294,
States v.
480 U.S.
107
United
witness,
argues
ill.
he
to call as a
Fite
1134,
(1987) (in
S.Ct.
would be befоre the officers se- (Okl.Cr.1987), “when no evidence has been the warrant and cured conducted lawful particular issue, offered the defense on a search. fairly it be said that the evidence is undisputed, uncontradicted or unrefuted.” Nor can the search sanctioned un Further, to constitute reversible plain plain der the view doctrine. The view prosecutоr’s “directly statements must exception requires that the officers have unequivocally” call the attention to the right object lawful to access to the testify. accused’s Ngu failure Id. at 3. view, incriminating nature of the State, yen 172 (Okl.Cr.1988); v. 769 P.2d immediately apparent. item be v. Horton State, (Okl.Cr Hays v. 617 P.2d State, 2301, 2308, 110 496 U.S. 110 S.Ct. .1980); Wright v. 617 P.2d (1990); Roney L.Ed.2d (Okl.Cr.1979). The State’s evidence was un- Absent a search controverted, prosecutor’s comments had no lawful *5 did not direct the attention to Fite’s buildings. police only inside the The had a testify. light failure to of the overwhelm right lawful to inbe the field. The view evidence, prosecutor’s comment did exception grant police does the au deprive right him of his to a fair trial. thority building simply to enter the because they something incriminating see inside thе proposition In his final Fite ar- building. police The must have a gues indigent his status as an warrants dis- basis, granting some other constitutional missal or modification of his fine. We note actually them building. to enter the argument premature is not as he has custody. been released from As stated earli- The search of the was ille er, is fine modified from However, gal. in this ease the errоr harm is $10,000. persuaded We are not to further marijuana Although less. was seized from modify the fine. building, inside the the officers also seized marijuana from outside the The
evidence seized outside the DECISION lawful under the fields doctrine. The of the trial Sentence testify plants officers also could about the AFFIRMED, appellant’s court is fine is they growing saw inside the well house be MODIFIED from cаuse the fields doctrine allows the building, although to look LUMPKIN, P.J., specially concurs and police may building not enter the without a opinion. files Thus, warrant. even if the evidence seized from the was excluded there V.P.J., JOHNSON, LANE, J., concur. still sufficient evidence to establish Fite had committed the offense of cultivation of mari STRUBHAR, J., specially concurs. juana. Accordingly, grant we decline to re LUMPKIN, JUDGE, PRESIDING ground. lief on this specially concurring. proposition In his fourth opinion I concur in the of the Court. I complains following that the statement separately explain perceive what I write prosecutor during argu closing made overruling be the rationale behind Brown v. you ment constituted misconduct: “So could evidence, presented look аt all the what and what is not —and it’s not controverted. The Court is correct when it observes the Nobody jury presented help has contested what was to have a determine sentence question whether and after the submitted pertinent sec- by statute. guaranteed Therefore, suppressed. evidence should reads: tion possessory interest Appellant could claim of conviction of a verdict In all cases suppress asserting motion to purposes any of the laws of against any offense relieving prosecution of its re without may, possessory interest prove sponsibility of the defendant request upon the shall crime. convict him of the in their punishment declare the assess and law, limitations fixed verdict within agree the result reached I with judgment render court shall I opinion. Accordingly, con- in the Court’s verdict, except as herein according to such cur. provided. added). The O.S.1991, (emphasis § 926 FOR RE- PETITION GRANTING ORDER punishment AND DENYING
option of determination IN PART HEARING mandatory if discretionary and becomes IN FOR REHEARING PETITION separate request for the a defendant makes PART lan- punishment. The assess the Bryan charged Larry Don Fite was clearly provided” “except as herein guage CRF-88-89, County No. District Case can be modified this section indicates Marijuana, Af- Cultivation with Unlawful O.S.1991, The Court cites other sections. Felonies, in of 63 violation ter Two or More example. Another is O.S. as an 991a by a Fite was tried O.S.Supp.1987, 2-509. in- presentence providing Powers, Rocky Honorable before the court with a vestigation provide the trial Judge. jury returned a verdict District thorough picture of the circumstances be sen- guilty and recommended Fite the court in in an effort aid of the offense twenty years imprisonment tenced to show, statutes sentencing. As these its $100,000. The trial court sen- and fined *6 stone, not carved in jury’s recommendation with the ver- tenced him accordance judge which the is a recommendation but Sentence, dict. From extenuating circum- unless should follow On perfected appeal his this Court. otherwise. stances dictate decision, 21,1993, by published we December judge power has this It is because the Sentence, Judgment and affirmed Fite’s jury’s recommendation to deviate from $100,- imposed on Fite from modified the fine my that is incorreсt. It is belief that Brown 000 to O.S.1991, general punishment 64 is a 3.14, Rule Rules the Court Pursuant of which, specific in the absence of provision O.S.Supp.1993, Appeals, Ch. Criminal fine, part of given to the as should be a Petition for Rehear- App., Fite has filed option. punishment Peti- propositions ing. Fite raises two characteriza I with the Court’s Rehearing: tion for standing by Appel issue raised tion of the unjustified Proposition I: An warrantless standing for lant. The Court here confuses Mr. Fite’s constitutional search violated in suppression possessory with purposes of rights process trial and due of law. to a fair required for conviction terest the land Proposition This Court’s decision II: charged. The which he was the crime with against petitioner was a new fine and deter standing must be raised first issue principles of due arbitrary violative of inquire can into the trial court mined before process of law. this, In or seizure. legality of the search 3.14, B subd. of the Rules Rule Appellant. proof is on the the burden of Appeals provides that a Court Criminal 1196-96 Champeau v. only if: rehearing shall be filed petition for denied, (Okl.Cr.1984), cert. (1) (1984). ease ... decisive of the some decision attorney of necessary duly submitted Appellant had the determination by the has been overlooked property is a find record in the possessory interest or has been ing made all the evidence after Gary Lumpkin
(2) is in conflict with an .. .the decision /s/ LUMPKIN, express controlling Presiding or GARY L. decision was not Judge of this Court which the attention argu- or in called еither in brief oral Charles A. Johnson /s/ ment. JOHNSON, CHARLES A. Vice Having Fite’s Petition Rehear- examined Presiding Judge ing, fully having been advised F. James Lane /s/ I premises, Proposition finds that this Court LANE, Judge F. JAMES of the Petition should be denied. Chapel Charles S. Proposi- we find Fite has raised an issue in /s/ CHAPEL, Judge CHARLES S. requires tion II Court. review improperly This found Fite was Strubhar, Judge Reta M. /s/ O.S.Supp.1987, § 2-609 and fined under 63 STRUBHAR, Judge RETA M. original could not stand. howevеr, concluded, section We
64 of could be Title holding, on Fite. so we over- of Brown v.
turned the rule (Okl.Cr.1957), ap- limited “(1)
plication of section 64 to eases where tried to has been waived ease is court; where the fails or refuses JOFFE, Repre- Kne Pamela Personal plea penalty; to assess sentative of the Estate of Robert guilty by the defendant.” We held Joffe, Deceased, Aрpellee, where a defendant is tried and sentenced jury, fine under the court section 64. Clayton VAUGHN, individual; KOTV, an Fite now contends our decision overturn Inc., corporation; Delaware David applied him Brown should as Cassidy, individual, Appellants, application our new rule to Fite would process. agree. violate due deci We Our foreseeable, sion to Brown overturn was not *7 Corporation, Belo A.H. Texas warning and Fite lacked fair section corporation, Bogatay, and Mark applied could be to him. v. Unit See Marks individual, Defendants. States, 188, 191-192, 990, ed U.S. S.Ct. (1977); L.Ed.2d Bouie v. Colum No. 79505. bia, 347, 353-54, 378 U.S. 84 S.Ct. 1702-03, (1964); United Harriss, 612, 617,
States v.
Appeals
(1954); Hughes
ing filed DENIED AND herein be IN PART
GRANTED PART. IN AFFIRMED,
Sentence of Fite The Clerk DISMISSED.
of this Court is directed to issue the mandate
forthwith.
IT IS SO ORDERED.