Question Submitted by: Larry R. Meachum, Director, Department of Corrections
1983 OK AG 48
Decided: 03/29/1984
Oklahoma Attorney General
¶0 The Attorney General has received your request for an official opinion asking:
"Can three consecutive deferred sentences, imposed on the same day by the same judge, each referring to the other, run for a period exceeding two years?"
¶1 You specifically ask about an instance in which a trial court imposed three consecutive deferred sentences running for a total of six years from the date of imposition.
¶2 The statute authorizing the deferred sentencing procedure is 22 O.S. 991c (1982), which states in its entirety:
"Upon a verdict or plea of guilty, but before a judgment of guilt, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place the defendant on probation under the supervision of the State Department of Corrections upon the conditions of probation prescribed by the court. The court shall first consider restitution, administered in accordance with the provisions pertaining thereto, among the various conditions of probation it may prescribe. The court may also consider ordering the defendant to engage in a term of community service without compensation, according to a schedule consistent with the employment and family responsibilities of the defendant. Further, the court may order the defendant confined to the county jail for a period not to exceed ninety (90) days to be served in conjunction with probation. Upon completion of the probation term, which probation term under this procedure shall not exceed two (2) years, the defendant shall be discharged without a court judgment of guilt, and the verdict or plea of guilty shall be expunged from the record and said charge shall be dismissed with prejudice to any further action. Upon violation of the conditions of probation, the court may enter a judgment of guilt and proceed as provided in 22 O.S. 991a of this title. The deferred judgment procedure described in this section shall only apply to defendants not having been previously convicted of a felony." (Emphasis added).
¶3 The statute states that the probationary term shall not exceed two years and that upon its completion the defendant shall be discharged without a court judgment of guilt. In the construction of statutes, "shall" is usually given the common meaning of "must." It is interpreted as implying a command or mandate. Sneed v. Sneed, 585 P.2d 1363, 1364 (Okl. 1978). Thus, the defendant's probation must not exceed two years and the defendant must be discharged upon the successful completion of that term.
¶4 A deferred sentence begins to run on the date the sentence is imposed and when the defendant executes the rules and conditions of the deferred sentence. Anderson v. State, 512 P.2d 1387, 1389 (Okl.Cr. 1973). A trial court is without authority to impose a deferred sentence in excess of two years but it may impose a probationary term for any period of time less than two years. State v. Rodriguez, 547 P.2d 974,975 (Okl.Cr.1976). Thus, where a court defers sentencing on separate charges on the same date, those probationary terms cannot exceed two years from the date of imposition.
¶5 It is, therefore, the official opinion of the Attorney General that, pursuant to 22 O.S. 991c (1982), deferred sentences imposed on the same day by the same judge, each referring to the other, cannot run for a period exceeding two years.
MICHAEL C. TURPEN
ATTORNEY GENERAL OF OKLAHOMA
ROBERT A. NANCE
ASSISTANT ATTORNEY GENERAL
DEPUTY CHIEF, FEDERAL DIVISION
| Cite | Name | Level |
|---|---|---|
| None Found. |
| Cite | Name | Level | |
|---|---|---|---|
| Title 22. Criminal Procedure | |||
| Cite | Name | Level | |
| 22 O.S. 991a, | Sentence - Powers of the Court | Cited | |
| 22 O.S. 991c, | Deferred Sentence | Discussed | |