Crimes in Oklahoma are felonies or misdemeanors.1 Every crime punishable by death, or imprisonment in the penitentiary, is generally a felony. All other crimes are generally misdemeanor.2 However, effective November 1, 2016, district attorneys have discretion to “file the charge as a misdemeanor offense rather than a felony offense” in any non-85% felony crime, after consideration of the nature of the crime, the defendant’s background, and the public interest.3
The appropriate penalty for a crime is the law in effect when the crime is committed.4 The extent of possible punishment, rather than the penalty actually imposed, determines whether a crime is a felony5. Most penal statutes state whether the crime is felony or misdemeanor, but when the maximum penalty exceeds one year imprisonment, the crime is certainly felony.6
Where no specific punishment is provided, every felony is punishable by ≤ $1000 fine or ≤ 2 years imprisonment, or both. Unless a different punishment is prescribed, a misdemeanor is punishable by ≤ 1 year imprisonment in the county jail or ≤ $500 fine, or both.7 Criminal punishments can generally be inflicted only after conviction, except a conviction can be deferred on conditions amounting to punishment.8
Many statutes prescribe a “mandatory” minimum term of confinement. The Justice Safety Valve Act of 2015 authorized a trial court to depart downward up to 75% from the minimum for certain crimes, for “substantial and compelling reasons” indicating the sentence is unnecessary to public safety, would result in substantial injustice to the defendant, or when the defendant is eligible for alternative sentencing programs, and has been accepted to a program.9
Penal statutes sometimes provide that upon conviction a defendant “shall be punished by” such and such; or some crime “is punishable” by a term of “imprisonment” in the penitentiary or jail, or a fine in a specific amount or range, “or both such fine and imprisonment.” Another common expression of the penalty is that a person committing, say, kidnapping “shall be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term not exceeding 20 years.”10
We sometimes say that a punishment provision lacks a “minimum term” (even in this book) but this is not strictly the law. The object of conviction is to render the offender subject to some punishment: a verdict sentencing the defendant to 0 days imprisonment or $0.00 fine is no punishment at all, and is not a good verdict.11 Lewis v. St., 1911 OK CR 275, conveys this essential point: “No minimum punishment is fixed by the statute . . . Thus it was within the province of the jury to assess any fixed period of time not exceeding five years. It might have been as low as one hour, or even one minute.” The point is that a conviction requires a penalty by confinement or a fine, “or by both,” but not “or by neither.”
A short note on the subject of fines. Bivens v. St., 2018 OK CR 33 overruled Coates v. St., 2006 OK CR 24, and abolished the longstanding rule that a penalty enhanced under section 51.1 could not be “combined” with the substantive fine provided for the original offense. As a result of Coates, prior editions of this book often derived the fine for enhanced felony offenses from the general felony fine authorized by 21 O.S.2021, §64(B), that is, a fine of ≤ $10,000.00. In recognition of Bivens, this Edition gives the fine for the original offense as well as enhanced fines for subsequent offenses where the substantive penal statute provides them, and resorts to §§ 64(A) for misdemeanors and 64(B) for felonies only where the criminal statute defining the offense and its penalty makes no mention of a fine.
References
- 21 O.S.2021, § 4 ↩︎
- 21 O.S.2021, §§ 5-6 ↩︎
- 22 O.S.2021, § 232 ↩︎
- Bowman v. St., 1990 OK CR 19 ↩︎
- Braly v. Wingard, 1958 OK 139 ↩︎
- Carr v. St., 1961 OK CR 15 ↩︎
- 21 O.S.2021, §§ 9-10 ↩︎
- 21 O.S.2021, § 8; 21 O.S.2021, § 991c (deferred sentence) ↩︎
- 22 O.S.2021, § 985.1. The statute excludes the violent crimes listed in 57 O.S.2021, § 571; registerable offenses under the Sex Offender Registration Act; crimes involving the use of a firearm; 85% crimes under 21 O.S.2021, § 13.1; trafficking in illegal drugs; crimes involving leading, managing, or supervising a continuing criminal enterprise; and terrorism. ↩︎
- 21 O.S.2021, § 741 ↩︎
- Schapansky v. St., 1971 OK CR 281 (finding trial court properly instructed jury to resume deliberations after it recommended a suspended sentence but specified no term of imprisonment, with the instruction that “you have from, well, from one day to seven years is what it amounts to. So, you’d have to pick a sentence within that period,’ and affirming 6 month sentence). ↩︎