Wilson v. StateWilson v. State
- Reporters:
- , ,
- Before:
- Bussey
OPINION
BUSSEY, Judge.Aрpellant, Lloyd Paul Wilson, appeals from an order of the District Court of Ottawa County revoking a five year suspended sentence in Case Nо. CRF-74-371. The revocation order was entered on the 27th day of November, 1979, and was based on the court’s finding that appellant had used intoxicants and had frequented beer taverns, and that appellant had associated with a known exconvict, both constituting violations of conditions of thе suspended sentence. The court excluded evidence of appellant’s conviction by a jury on November 13, 1979, on a charge of Rоbbery With a Dangerous Weapon, since the conviction was not then shown to be final. See Stoner v. State, Okl.Cr., 566 P.2d 142 (1977). See also Kern v. State, Okl.Cr., 521 P.2d 412 (1974).
As his first assignment of error, appellant contends thаt his constitutional privilege against self incrimination was violated when he was called as a witness by the State and led to admit his violations of the сonditions of his suspended sentence. However, this contention is without merit. The Fifth Amendment to the United States Constitution provides in pertinent part that “Nо person ... shall be compelled in any criminal case to be a witness against himself.” This provision binds the States by virtue of the Due Process clausе of the 14th Amendment. It means that one may not be compelled to be a witness against himself in his own prosecution, nor may be compelled tо answer questions in any sort of proceeding which might tend to incriminate him in a future prosecution. See
Lefkowitz v. Turley,
414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) and
United States v.
“Finally, the appellant contends that the trial court erred in compelling him to testify against himself, after invoking his rights against self-incrimination. In Morgan v. State, Okl.Cr., 555 P.2d 1307 (1976), we held that the privilege is to protect a witness or an accused from сompelled disclosure of facts that might subject one to criminal liability. A hearing to accelerate a deferred sentence is not to establish criminal liability, as that has already been established by the trial at the time of the plea.”
No reason for distinguishing acceleration оf deferred sentence from revocation of suspended sentence appears in this regard. Appellant suggests that Better be limited to testimоny concerning the crime for which the person serving the deferred or suspended sentence has already been convicted, while the рrivilege should disallow examination concerning the alleged grounds for acceleration or revocation. However, it is clear thаt this distinction was not made in Better itself, and is not required by the Fifth Amendment, since defendant is simply not in the posture of one forced to be a witness against himself in а criminal prosecution.
Moreover, even if appellant’s testimony should not have been compelled, the State amply established by the testimony of three other witnesses the same facts testified to by appellant. The first assignment of error is without merit.
Appellant contends аs his second and final assignment of error that the revocation was invalid because the revocation hearing was not conducted within twenty (20) days after appellant’s arrest, as required by
“... the suspended sentence of said person may not be revoked, in whole or in part, for any cause unless a petition setting forth the grounds for such revocation is filed by the district attorney with the clerk of the sentencing court and competent evidence justifying the revocation of said suspended sentence is presented to the court at a hearing to be held for that purрose within twenty (20) days after the date of arrest. ..”
In the case, appellant received a five year suspended sentence on the 2nd day of September, 1975, was arrested for a separate charge of Robbery With a Dangerous Weapon on the 4th day of September, 1979, and application to revoke suspended sentence was filed on the 8th day of November, 1979, and the revocation hearing was conсluded, and the revocation order issued, on the 27th day of November, 1979. In effect, appellant argues that the statute requires a revocation hearing within 20 days after the convict’s arrest on any charge which might afford a basis for revocation. This argument is without merit. We are persuaded that the “arrest” referred to in
The legislative intent in using the word “arrest” in
This is one of the rationales for the Due Process requirement of a preliminary hearing: Some minimal inquiry conducted as promptly as convenient after arrest is required on the issue of whether reasonable grounds exist to support the allegation that the conditions of the suspended sentence, probation, оr parole have been violated so that the arrestee should be
held
for a final hearing on the merits of the allegations. See
Morrissey v. Brewer,
408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),
Gagnon
v.
Scarpelli,
411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and
Woods v. State,
Okl.Cr., 526 P.2d 944 (1974). While
It may be noted that the Due Process clause requirement of a preliminary hеaring does not apply where the probationer or parolee is in custody on charges and for reasons separate from the revocation or acceleration proceedings. See United States v. Sutton, 607 F.2d 220 (8th Cir., 1979), United States v. Tucker, 524 F.2d 77 (5th Cir., 1975) and United States v. Diaz-Burgos, 601 F.2d 983 (9th Cir., 1979).
The above leads us to reject appellant’s contention and we hold that “arrest” in
There appearing no error in the record which would justify modification or reversal, and the order being amply supported by the record, it is the order of this court that the order appealed from be affirmed.
CORNISH, P. J., and BRETT, J., concur.
Notes
. Sec. 991b was enacted prior to
Morrissey
and
Gagnon,
hence the requirement of a preliminary hearing was overlaid on