Mike REYNOLDS, Appellant, v. The STATE of Oklahoma, Appellee.
No. A-18118.
Court of Criminal Appeals of Oklahoma.
June 13, 1973.
511 P.2d 1145
Larry Derryberry, Atty. Gen., Michael Cauthron, Asst. Atty. Gen., Daniel J. Gamino, Legal Intern, for appellee.
OPINION
BLISS, Presiding Judge:
Appellant, Mike Reynolds, hereinаfter referred to as defendant, was charged, entered a plea of guilty in the District Court of Oklahoma County, Case No. CRF-72-293, for the offense of Burglary in the Second Degree, his punishmеnt was fixed at three (3) years imprisonment, and from said judgment and sentence the defendant has filed a timely Petition for Writ of Certiorari, which was granted on September 25, 1972.
As the judgment and sentеnce entered in this cause must be vacated, we will discuss only one proposition asserted by the defendant. Under this proposition the defendant contends that he was not given a copy of the Presentence Investigation and Report prior to the date judgment and sentence was pronounced.
Upon plea of guilty, or verdict of conviction, in all felony cases, where the court desires more information, it may make suitable disposition of the custody of the defendant and request the Department of Pardоn and Parole or its successor to make a study of the defendant. This study shall include, but not be limited to, the defendant‘s previous delinquency, his social background, his capabilities, his mental and physical health, and such other factors as may be considered pertinent. Within thirty (30) days from the date this request is made by the court, or within such extended time as the court may allоw, the Pardon and Parole Board shall make a written report to the court, a copy of such report to be given to the defendant and District Attorney, which shall be filed with the court clerk, unless otherwise ordered by the court. After receiving such report, the court shall impose such sentence as he deems warranted, which shall run from the date of thе plea of guilty, or conviction.
Also see Noland v. State, Okl. Cr., 495 P.2d 416 and Owens v. State, Okl.Cr., 495 P.2d 417.
After a careful review of the record, we are in agreement with the Attorney General‘s statement in his brief where it is stated that the transcript оf this case is quite unclear whether or not a copy of the Presentence Investigation and Report was ever furnished to the defendant prior to the time of the sentencing.
Therefore in the interest of justice we believe the judgment and sentence entered in Case No. CRF-72-293 should be vacated, set aside, and held for naught.
The presiding judge of the Criminal Division of the Seventh Judicial District is directed to assign this matter before a different trial judge within ten (10) days following the date of issuance of mandate from this Court for a sentencing date, at whiсh time the defendant should be represented by counsel of his choosing, and he should be provided with a copy of the Presentence Investigation and Report in order that hе might have the opportunity to rebutt or refute that which he feels is false or inaccurate.
Reversed and remanded with instructions.
BUSSEY and BRETT, JJ., concur.
At the trial Raymond Reed testified that on October 1, 1972, he was employed by the City of Hobart as a police officer; that at approximately 10:40 p.m. he and his partner, Officer James Christian, observed the defendant driving a 1963 white Oldsmobile with what appeared to be an improper license tag. The tag was bent in a manner that the year and name of the state did not show. Officer Reed pulled behind the defendant‘s car and turned on his red beacon. The defendant did not stop, so Officer
James Christian next testified to substantially the same facts as Officer Reed testified.
Herb Henderson, Under Sheriff of Kiowa County, next testified to thе chain of custody of the six plastic bags.
Sid Cookerly, Chief Agent, Narcotics Enforcement Division, Oklahoma State Bureau of Investigation, testified that he went to the Kiowa County Sheriff‘s Offiсe the evening of October 1, 1972, and took a sample of each bag to test. He testified that the test results showed the substance in each bag was marijuana. Cookerly further tеstified that the size of the bags and the quantity of material in each bag indicated that the marijuana was packaged for sale.
The defendant did not take the stand nor offer аny evidence in his behalf.
The defendant‘s first proposition asserts that the defendant‘s car was searched without probable cause and without a search warrant. We do nоt agree.
In the instant case the record reveals that Officer Reed‘s uncontradicted testimony was that the bags of marijuana were in plain view on the floorboard and сlearly visible to him when he shined his flashlight into the automobile. This Court has consistently held that where the evidence was in plain view, the act of a peace officer seeing suсh items did not constitute a search. See Lloyd v. State, Okl. Cr., 505 P.2d 1364 (1973); Woodlee v. State, Okl. Cr., 505 P.2d 1366 (1973) and Battles v. State, Okl.Cr., 459 P.2d 623 (1969).
The defendant‘s second proposition asserts that there was no competent evidence to prove “the intent to distribute.” In the case of Murphy v. State, 79 Okl.Cr. 31, 151 P.2d 69 (1944), this Court held in Syllabus 2:
Where intent is necessary in the commission of a crime, it is a question for the jury, under all the facts and circumstances, of each individual case. It may be proved by direct or circumstantial evidence.
It is therefore our opinion that the “intent to distribute” is a fact question for the jury, to be submitted to them under proper instructions.
In the instant casе, after a complete review of the record, we believe there was sufficient evidence to submit this question to the jury as the trial court properly did.
Defendant‘s third proрosition asserts that the punishment is excessive. In the case of Daniels v. State, Okl.Cr., 488 P.2d 931 (1971) this Court stated:
. . . We have repeatedly held that the question of excessiveness of punishment must be determined by a study of all the facts and circumstances in each case, and the Court of Criminal Appeals does not have the power to modify a sentence, unless we can conscientiously say that under all the facts and circumstances, the sentence is so excessive as to shock the conscience of the Court.
BUSSEY, J., concurs.
BRETT, J., specially concurs.
BRETT, Judge (specially concurring).
I concur in this decision because оf the special circumstances which exist. Defendant relies on Watt v. State, Okl.Cr., 487 P.2d 961 (1971), and recites in his brief that the circumstances are almost identical. However, a reading of Watt v. State, supra, reveals an absence of intoxication. In the instant case the initial arrest was for an “improper tag,” but when defendant alighted from the vehicle he appeared to stagger and possessed an unusual odor, which provided the officers with probable cause to believe he was under some type of intoxication. The first impulse was to believe the intoxication was the result of liquor, so the second officer looked into the vehicle to ascertain if an open bottle was on the seat. The officer found an оpen can of beer and assertedly saw the bags of marijuana. The record makes some reference to “a paper sack which was torn and wet and had clear plastic bags with some green substance inside.” (Tr. 29) At the same time there is not sufficient testimony in the record for this Court to ascertain to what extent the paper sack entеred the picture and whether or not the plastic bags could be seen without opening the paper sack. Consequently, considering the record before the Court, there is no evidence or testimony to contradict that of the arresting officers.
Therefore, I concur in this decision.