| Okla. Att’y Gen. | Aug 19, 1999
Dear Representative Paulk,
¶ 0 This office has received your letter asking for an official Opinion addressing the following questions:
1. Is an order deferring judgment for a sex offense void orvoidable?
2. Who may request that an order deferring judgment for a sexoffense be vacated or set aside?
¶ 1 A defendant who pleads guilty or nolo contendere to a sex offense1 is ineligible to receive an order deferring judgment. See 22 O.S. Supp. 1998, § 991c[
¶ 2 An order deferring judgment is not a suspension of a sentence, but is a deferment or postponement of the actual imposition of a judgment and sentence. The deferment procedure involves the factual determination of guilt, either by verdict or acceptance of the first-time offender's plea of guilty or nolocontendere, and deferring the imposition of judgment and sentence for a period not to exceed five (5) years. See 22O.S. Supp. 1998, § 991c[
¶ 3 The order deferring judgment imposes certain conditions of conduct which if violated could result in acceleration of the order deferring judgment and conversion to an adjudication of guilt. See 22 O.S. Supp. 1998, § 991c[
¶ 4 However, should the defendant successfully complete the probation term, "the defendant shall be discharged without a court judgment of guilt, and the court shall order the verdict or plea of guilty or plea of nolo contendere to be expunged from the record and the charge shall be dismissed with prejudice to any further action." 22 O.S. Supp. 1998, § 991c[
¶ 5 In a suspended sentence, however, judgment is imposed by the court but execution of the sentence is suspended. The court, in its discretion, trying a cause in which a person is convicted of commission of any crime may "[s]uspend the execution of sentence in whole or in part, with or without probation," upon the specific conditions prescribed by the court. See 1999 Okla. Sess. Laws C.4, § 31 (amending 22 O.S. Supp. 1998, § 991a). The term of the suspended sentence must fall within the range of punishment for the offense. If a defendant violates any rule or condition of probation prior to expiration of the term of probation, he is subject to revocation of his suspended sentence.See 22 O.S. Supp. 1998, § 991a[
¶ 7 The Bumpus court clarified its holding in Davis
concerning the important distinction between "void" and "voidable" in vacating the order of suspension due to the defendant's prior felony convictions. The court found that if the existence of the defendant's prior felony convictions is sufficiently evident from the record at the time the suspension order is entered, then the district court's order of suspension is considered "void" at its inception. See Bumpus,
¶ 8 However, when the supporting record does not reflect the fact that the defendant had prior felony convictions at the time of the defendant's plea, the district court's suspension order is "voidable." See id. The questioned order is only subject to being vacated and set aside upon introduction of evidence extrinsic to the existing record that demonstrates that the district court was without statutory authority to enter the order. See id. Sufficient evidence must be presented to the district court of the defendant's prior felony convictions which may be shown during the term of the suspended sentence to have the order vacated. See id.
¶ 9 The decision in Bumpus was predicated on the fact that the district court did not have the statutory authority to impose a suspended sentence because of the existence of prior felony convictions of the defendant. Likewise, the district court also lacks the statutory authority to impose an order deferring judgment for a sex offense. Therefore, such an order is void on its face and must be vacated or set aside.
¶ 11 The district court judge should also inquire further into the defendant's eligibility for an order deferring judgment if, prior to imposing such an order, the court becomes aware that the defendant may be ineligible for the order. See id. at 1211. Although the Court of Criminal Appeals has not specifically addressed the issue of whether private individuals have standing to initiate proceedings to notify the court of an invalid order deferring judgment, absent express statutory authorization, private individuals have no standing to initiate such proceedings as the decision whether to prosecute is within the discretion of the prosecutor. See Carpenter v. State,
¶ 12 Alternatively, the defense may raise the issue on the record during acceleration proceedings in which the State seeks to convert the order deferring judgment to an adjudication of guilt because the defendant has broken the terms of the order.See 22 O.S. Supp. 1998, § 991c[
¶ 13 At this juncture, the defendant may elect to have the order set aside by the withdrawal of his plea, as judgment and sentence have not yet been entered, and proceed to trial. Seeid.; see also 22 Ohio St. 1991, § 517[
¶ 14 It is therefore, the official Opinion of the AttorneyGeneral that:
1. A defendant who pleads guilty or nolo contendere to a sexoffense is ineligible to receive an order deferring judgmentpursuant to 22 O.S. Supp. 1998, § 991c(G). Accordingly, anorder deferring judgment for a sex offense is void on its face.
2. The prosecutor or defense counsel may request that an orderdeferring judgment for a sex offense be vacated or set aside.Private individuals, however, have no standing to initiate suchproceedings as the decision whether to prosecute is within thediscretion of the prosecutor.
W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
JAMES F. KELLY ASSISTANT ATTORNEY GENERAL
However, the offense of Indecent Exposure (21 Ohio St. 1991, §1021[
The deferred judgment procedure described in this section shall not apply to defendants who plead guilty or nolo contendere to a sex offense.
22 O.S. Supp. 1998, § 991c[