*1 at him. find shots We this then fired two culpability degree of the
conduct to be beyond scope Bear as
identified.in find offense. We also
the lesser included Appellant’s
that this resolves discussion error, there was assignment
last support the convic- evidence
insufficient Kill Shooting with Intent
tion State, charge. Spuehler v. 709 P.2d
(Okl.Cr.1985). proposition, Appellant his fourth give
points the trial court failed to out that concerning the burden of
any instruction proceed
proof stage in the second conclusion.
ings. supports record this on this critical issue
The failure to instruct stage is fundamental error
in the second this court not require relief from
and will objection at the
withstanding the lack State, v. Mitchell 781 P.2d
trial court.
(Okl.Cr.1989). Accordingly, although we convictions, we RE must
AFFIRM the by the recommended
VERSE the sentences Pur by the trial court.
jury and assessed given authority to this Court
suant to in 22 legislature
by the 1066, we REMAND case 929 and
§§ resentencing.
the trial court BRETT,
PARKS, P.J., LUMPKIN JOHNSON, JJ., concur. Oklahoma, Appellant,
The STATE GRAY, Appellee.
Ryan Richard
No. S-89-590. Appeals of Oklahoma. Criminal
Court of
Dec. 1990.
hearing, and after the district court af- magistrate appeal. Thus, firmed the on we accept appeal the State’s under 22 O.S. Supp.1989, 1089.1. § question
The this Court must decide was very aptly stated the Honorable Janice Dreiling, P. Judge Associate District of Washington County, at the preliminary hearing: prior juvenile Can convictions for Driving and Operating a Motor Vehicle While Under Intoxicating the Influence of Liquor, under exception the traffic in Title O.S.1981, later be for used en- § hancement when the becomes an adult? The and district court held that could not. We hold that they can and REVERSE.
I. Ryan Gray (18) Richard eighteen was years when he old was arrested on the present charge Driving Operating of and Motor Vehicle While Under the Influence Intoxicating Liquor, of in Case No. CRF- preliminary hearing, 88-35. At the prosecution stipulated and defense counsel evidence which formed the basis for underlying charge alleged in the first Goldstein, Atty., Michael Erie Dist. Asst. page dispute of the Information. The Bartlesville, appellant. for appeal page concerns the second Information, prosecution wherein the at- Sumner, Bartlesville, appel- Jesse L. tempted prior juvenile to use Mr. Gray’s lee. pun-
traffic convictions for enhancement ishment. OPINION hearing, At preliminary the State of-
JOHNSON, Judge: Judgment copies fered certified and Sen- O.S.1981, State, 1053(1) The under 22 CRM-85-282, tence and Docket Sheets appealed the Washing- has decision of the Gray pled guilty showed that Mr. which Court, County ton District which dismissed Driving Operat- and was convicted of page the second of the Information in Case ing a Motor Vehicle While Under the Influ- CRF-88-35, finding No. traf- Intoxicating Liquor. Gray ence Mr. was fic convictions could not used to enhance pay sentenced to of one fine hundred punishment once reached adult- ($100.00)plus dollars court costs. State, Initially, hood. we find that brief, appellate wrong copies its The cited State then offered certified authority appeal. Judgment statute for its Sentence and Docket Sheets CRM-85-468, appeal ruling magis- from an adverse of a Mr. which showed that dismissing page Gray pled guilty trate the second of Driv- and was convicted properly appealed ing Information is Operating Motor Vehicle While 1089.1, Liquor. Intoxicating which the State the Influence of Under properly preliminary pay announced after the fine was sentenced to ($100.00) county jail more plus for not court incarceration
one hundred dollars (1) year. prior If his a D.U.I. than one and to attend school. costs used for enhancement on convictions were *3 copies offered certified Finally, the State Gray Mr. could be found page, a second Judgment and Sentence and Docket of subject to guilty felony of a at least CRF-85-256, that in which showed Sheets (5) (1)year years than five one and no more pled guilty and was convicted of Mr. custody Department the of in of Cor- the Operating a Driving and Motor Vehicle rections. Intoxicating of the Influence While Under later Liquor. Case No. CRF-85-256 was charge and Mr. to a misdemeanor III.
amended two pay to a fine of Gray was sentenced 1112(a), O.S.Supp.1989, Under 10 § ($200.00) twelve and serve hundred dollars charged having violated a child who is with Washing- of (12) custody in months any municipal or ordinance state statute suspended. Sheriff, County which was ton in Section other than those enumerated objected to the introduc- Defense counsel 10, in of shall not be tried a 1104.2 Title and asked convictions tion of juvenile proceeding. in criminal action but a pursuant to 10 O.S. closed that 1112(a) provides, noth further § 1981, responded that The State 1506. § prevent ing in act shall be construed to page in of the second the convictions used jurisdiction of concurrent the exercise adjudications un- not the Information were byor of the district court another division rather, juvenile proceeding, but any der involving municipal children courts cases and con- court Informations were district charged the viola child is with wherein the dismissed the sec- victions. municipal a traffic law or tion of ordinance, state or not finding that the statute was page, ond Thus, added) where (emphasis a conviction designed to reach back and use charged with violations of juveniles are they reached received before that a child law municipal or traffic or ordi state purpose of eighteen for the age of nances, division of the district the criminal pen- and their ultimate enhancing charge a municipal free to court and the court are they reach adulthood. alties once jurisdiction ju with exercise concurrent the district court. Fan venile division of II. City, 620 City v. Oklahoma P.2d shier of 1347, (Okl.Cr.1980). of a viola- 1349 Every person is convicted who 11-902(A)(2) O.S.Supp.1988, 47 tion of guilty of a misdemeanor deemed shall be IV. punished shall be offense and for the first 976, Edmiston, P.2d 977 v. 560 D.M.T. (10) less than ten for not by imprisonment (Okl.Cr.1977), the crime held that we (1) year, a fine one days nor than more a not a violation of Negligent Homicide is Thousand Dollars more than One of not excepted ju- that from traffic law State ($1000.00). 47 See 1112, proceedings under Section venile ten 11-902(C). within Any who placed within though the statute is even (10) previous conviction years after a We stated that those Traffic Code. of a second or
this section is convicted stigma criminality a statutes to which guilty be deemed subsequent offense shall jurisdiction within the are attaches to the felony be sentenced and shall Fi- District Court. Division of the Juvenile Department of Corrections custody of the explained traffic violations nally, that we (1) year and not to than one for not less jurisdiction exempt from are that fine of not (5) and a years, five exceed in nature or ma- generally non-criminal are Five Hundred than Two Thousand more Id. at 978. prohibition. lum Thus, ($2,500.00). faced if Dollars 1065, Tulsa, P.2d 565 City In Mook v. page of the charge the first on with juve- (Okl.Cr.1977), involving a case Information, Gray could be found City of Tulsa reckless charged nile subject guilty a misdemeanor ordinance, driving gener- we stated VI. al, a having child with any violated As the Supreme Oklahoma Court stated municipal state statute or ordinance shall Lester, Robertson State ex. rel. be tried in the division of the dis- (Okl.1972), P.2d operation trict court rather than a criminal action. public motor vehicle aon highway is not However, the criminal dis- natural, right, absolute but a conditional municipal trict court and the court are free privilege privilege granted ... [t]he concurrent exercise with the qualified, those who are who comply with
juvenile division in cases wherein children *4 police power reasonable requirements in are with violations of state or mu- the public safety welfare, interest of and nicipal traffic laws or ordinances. We con- and is from withheld those who do not. compelled cluded that the Juvenile Act the conclusion that no child be sentenced to has been held that the use of a It incarceration in a criminal action in the public motor vehicle on the highway does absence of proceedings. certification Id. rights”, not fall term within the “civil Com Finally, in City Fanshier v. Okla- Funk, 390, 186 monwealth v. Pa. 323 A. 65 City, supra, homa the reasoning we found (1936); also, it right is clear that the to to controlling Mook be in our holding drive a vehicle not property is a right but that the D.U.I. similarly ordinance is “traf- only a mere privilege. license or Snelgrove nature”, added) fic in (emphasis We also Department Vehicles, Motor 194 Cal. persuasive Legislature’s found the statu- App.3rd Cal.Rptr. (1987). tory placement of crime Driving the Supreme The Oklahoma Court has held Under the Influence in the Motor Vehicle right legislate that the to or to make laws conclusion, Code traffic laws. Id. or rules it police power as relates to the impossibility we found the of incarceration the Legis State is within the wisdom of the be determining the brought factor that lature and the exercise prerogative of that the and its D.U.I. lesser included offenses open judicial is not review. Polk v. exception within the traffic of the Juvenile Oklahoma Alcoholic Beverage Control Code. Bd., (1966). Legislature, P.2d 520 1112(a), under 10 pro
V. vided that a or subject child minor is to be treated for as an adult a traffic and With our offense holding Fanshier that a nature”, power the have to do so. D.U.I. ordinance is “traffic in it is clear that the criminal division of the dis juvenile A who takes the an wheel of municipal or trict court the court were free automobile should be the aware of serious to exercise Gray. over Mr. responsibility of his her or actions and though juvenile a even could be recognize possibility being needs to court, tried as an adult the district re treated as an adult for his or her conduct. sulting juvenile in adult convictions not and person It does matter to not who is adjudications, or jail he she could not face injured to an due automobile accident with Mook, penalty. supra. time as a See This the drunk driver as to or whether not jail is still the law time cannot be adult, is a or minor an the same against juvenile. assessed a property damage. would hold true as to If vehicle, case, youth is entrusted awith motor present pri-
In the Mr. Gray’s youth such should be responsible his or adjudica or convictions were not tions, rather, her acts and the An acci- but results thereof. were convictions under Thus, petitions. injury dent wherein serious results has district court once he be adult, fact, possibili relationship age; little to do with came an faced the ty youthful that if he continued his criminal statistics show us offend- behav ior, greater prior percent his convictions could be to er is in a of such used involved any subsequent punishment. injury property enhance damage or accidents. Such the defi- This would violate for their acts other offense. responsible parties should be delinquent O.S.Supp. in 10 found thereof. nition of the ramifications 1988, 1101(2). defining delinquent By affirming of the District Court The order habitually violates traffic as a child who RE- is ruling of laws, a child would exclude this section VERSED. or ran- singular committed a who has making a habit out without dom offenses LUMPKIN, J„ PARKS, P.J., and violating the traffic code. concur. BRETT, V.P.J., J., only way that LANE, my opinion concur It that the reconciled is these two sections can be result. and the adult say that the Presiding Judge: LANE, concurs Vice jurisdiction over the have courts concurrent in result. traffic laws as a class enforcement reached in the results I concur offender. of laws when can appellant find that majority and *5 way that the provisions charged the enhancement jurisdiction is when can exercise 11-902(A)(2). How- of 47 being with an habitual the child majority’s ever, lan- I address wish to Otherwise, code. offender of the traffic juve- the view that the guage expressing charged in the adult child must be court con- of the district nile division court. when adult courts jurisdiction current with charged with a traffic offense. majority seems to indicate opinion have juvenile division would including a minor any offense over traffic vehicle operating motor
offense such as safety when the expired sticker
with an any stopped for
juvenile had never been