PHILLIPS v. STATE

PHILLIPS v. STATE
2002 OK CR 37
59 P.3d 516
Case Number: F-2002-0775
Decided: 11/20/2002
CODY TYLER PHILLIPS, Appellant -vs- STATE OF OKLAHOMA, Appellee

ORDER DENYING APPELLANT'S MOTION TO HOLD YOUTHFUL
OFFENDER APPEAL IN ABEYANCE AND
ORDER GRANTING EXTENSION OF TIME TO FILE BRIEF

¶1 On October 3, 2002, Appellant, by and through counsel Robert Nigh, Jr., filed a motion requesting the above styled appeal be held in abeyance pending Appellant's treatment as a Youthful Offender in the custody of the Rogers County Office of Juvenile Affairs. Counsel, in part, sets forth the following:

¶2 Counsel states that in the event Appellant successfully completes his Youthful Offender treatment, he wishes to dismiss this appeal and counsel believes Appellant's treatment in a juvenile facility as a Youthful Offender is appropriate. Counsel also states: "Mr. Phillips wishes to take advantage of the services available to him in the custody of the Office of Juvenile Affairs, and for that reason does not wish to proceed with the appeal." However, counsel states that if an effort is made to bridge Appellant to the Oklahoma Department of Corrections, he "believes errors which occurred at Mr. Phillips' jury trial should be raised on appeal to prevent this result."

¶3 Appellate counsel cites no authority to hold the above styled appeal in abeyance until it is determined whether the State will request Appellant be bridged to the Department of Corrections, and we find none. Petitioner's conviction must be timely appealed as is required for all appeals to this Court. However, if in the future Appellant is revoked from the Youthful Offender treatment plan or upon reaching eighteen/nineteen years of age is transferred to the custody of the Department of Corrections pursuant to Section 7306-2.10 of Title 10, then Appellant [59 P.3d 517] can appeal the revocation/transfer to the Department of Corrections. See 10 O.S.2001, § 7306-2.10(H). At that time this Court will review to determine whether there is sufficient evidence to revoke by a clear and convincing evidence standard, or if there has been an abuse of discretion in transferring the Youthful Offender to the Department of Corrections rather than discharging the Youthful Offender.

¶4 Accordingly, Appellant's motion to hold the appeal in abeyance is DENIED. As the Notice to Transmit was issued on September 11, 2002, Appellant's brief is due to be filed on or before November 10, 2002. Due to the time required to address the issue presented, Petitioner's October 3, 2002, request for an extension of time to file the brief is GRANTED, and Petitioner's brief shall be filed on or before December 10, 2002.

¶5 IT IS SO ORDERED.

¶6 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 20th day of November, 2002.

[59 P.3d 518]

/s/ Gary L. Lumpkin

/s/ Charles A. Johnson

/s/ Charles S. Chapel

/s/ Reta M. Strubhar

/s/ Steve Lile

ATTEST:

/s/ Michael Richie