Sentencing in Oklahoma 9th Edition

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    Chapter 4. Imprisonment and Suspended Sentence

    4.1 Principles of imposition

    With eligible1 non-capital offenders, the court must consider whether to suspend all or part of a prison sentence, with or without probation.2 Perpetrators of some crimes3 against elderly (≥ 62) or incapacitated victims4 must serve the “first” 30 days5 of a sentence in county jail (which may be nighttime or weekend incarceration), and make mandatory restitution as a condition of a suspended or deferred sentence.6 Non-violent felony offenders may be sentenced to a term of continuous, nighttime, or weekend confinement in jail, with the balance of the sentence under supervision.7 Where the extent of punishment is left with the court, the court may hear circumstances in aggravation or mitigation of punishment. A court sentencing a veteran may consider mitigating “documentary evidence” that defendant served in a combat zone and has been diagnosed with post traumatic stress disorder.8

    Under the Community Service Sentencing Program, following a pre-sentence investigation, a non-violent felony offender not previously convicted of 2 or more felonies may be sentenced to any combination of jail ≤ 1 year and probation with or without conditions, including community service, substance abuse treatment and monitoring, counseling or medical treatment, and restitution.9

    The similarly named Oklahoma Community Sentencing Act creates another sentencing management option in many communities, under which qualified offenders may receive a community sentence or community punishment as part of a deferred or suspended sentence, that includes substance abuse treatment, restitution, education and vocational training, intermediate confinement, and community service. Different sentencing agencies administer various programs and use slightly different eligibility criteria. The court’s comprehensive authority to suspend a sentence and impose a broad variety of conditions and sanctions, set forth generally in § 991a of Title 22, is reiterated within the sanctions and conditions of these discrete programs.10 An offender whose sentence of imprisonment is suspended remains subject to either continuous, night, or weekend confinement in jail for ≤ 6 months, payment of the statutory fine, and any of these monetary assessments:

    • court costs11
    • costs of incarceration12
    • restitution to the victim, with 12% interest13
    • reimburse State for victim medical care, with 12% interest
    • payment to State trust fund providing restitution to victims
    • pay reward to local crime stoppers or OK Reward System
    • reimburse OSBI the determinable costs of investigation
    • clean up costs for illegal drug lab operated by the offender
    • if convicted of animal cruelty restitution for animal care
    • payment to Crime Victims Compensation Board
    • reimburse court fund for appointed counsel14
    • any fees or costs for treatment or other programs15
    • $40 monthly fee to DA for the first 2 years of probation16
    • day fines ≤ 50% of net wages to community sentencing17

    Offenders serving a suspended sentence are also subject to any of the following personal obligations or behavior required by the court:

    • community service18
    • mental health evaluation, course and/or treatment19
    • pre-sentence drug & alcohol assessment in DUI/APC/DWI20
    • victim impact panel program (with a ≤ $75 fee)21
    • interlock device with 2 year driver’s license restriction22
    • electronic monitoring confinement (≤ $300 monthly fee)23
    • treatment, education, rehabilitation for contributing causes24
    • periodic drug testing25
    • 2 yr. supervision by DOC or court-designated provider26
    • positive behavior modeling with a trained mentor27
    • restrictive housing confinement28
    • find a job and/or report daily as ordered29
    • submit DNA sample in felonies and some misdemeanors30
    • attend victim-offender reconciliation if victim agrees, and otherwise appropriate31
    • repair, restore, or pay actual costs for, damaged property32

    Other monetary assessments and personal restrictions apply to suspended sentences for specific offenders. False and bogus check offenders33 can be required to pay restitution of $25 per check to the victim, and fees to the DA equal to the amount assessed as court costs for each check upon filing the case, plus $25, plus restitution and fees on other bogus checks submitted to the Bogus Check Program.34 Offenders who sold stolen goods must pay restitution to any buyers in good faith as well as the property owners.35 Child abuse, child neglect, domestic abuse, and prostitution offenders can be required to attend offense-related counseling for drug, domestic, sexual, and child abuse issues.36 Community punishments are not subject to earned credits and service is credited day-for-day if the community sentence is revoked.

    The most extensive controls are reserved for sex offenders,37 including mandatory DNA samples, compliance with DOC’s sex offender specific rules of supervision, ≥ 3 years post-imprisonment community supervision,38 and participation in sex offender treatment during DOC supervision at their own expense, including a sex offender polygraph every 6 months during supervision.39 Habitual or aggravated sex offenders40 must be monitored by GPS throughout the supervision period, may be banned from social networking, and required to register email, instant message, and other identifying computer information.41 If part of a written plea agreement, the court can effectively banish an offender from the judicial district until the completion of the sentence.42 All offenders granted a suspended sentence must generally satisfy any reasonable condition ordered by the court. The law provides that all these potential restrictions and assessments “shall be made a condition of the suspended sentence.”43

    4.2 Technical violations and the intermediate sanction process

    In 2012, the Legislature prescribed an intermediate sanctions program administered by DOC for “technical” probation violations. The sanctions are graduated in a matrix developed by DOC. A technical violation is any violation of probation rules and conditions other than a new crime or seven other enumerated infractions including attempts to falsify, or 3 or more failed, substance tests in a 3 month period; willful non-payment restitution; tampering with electronic monitoring; failing to report for > 60 days; contacting a victim or criminal associates; 5 or more technical violations in 90 days; or violation of the Specialized Sex Offender Rules on probation.44 

    Within 4 working days of discovering a violation, the assigned probation officer initiates the sanction process on a form stating the alleged violation, the sanction according to the matrix, and the action plan to correct the technical violation. This information is submitted to a DOC hearing officer, with written notice to the offender of the violation, evidence, and sanction plan. A hearing is required unless waived, and must be recorded. If the hearing officer finds a technical violation by a preponderance of the evidence, the officer may impose a sanction plan. The offender may accept the sanction in writing, or refuse it, and DOC may impose the sanction over objection or request that the DA file an application to revoke the suspended sentence. The record of the hearing must be provided to the DA and the trial court. The hearing procedures and sanction plans for technical violations are reviewable by appeal to the district court and, presumably, the Court of Criminal Appeals.45

    Failure to comply with the imposed sanction plan is itself a non-technical violation of the rules and conditions that may result in a revocation proceeding. Technical violations remain sufficient grounds for the DA’s application seeking judicial revocation of the suspended sentence according to the general procedures described below. But any confinement ordered as a sanction for a technical violation is limited to 6 months for the first technical violation, and 5 years for a second or subsequent technical violation.46

    4.3 Revocation

    The suspended sentence always remains in essence a sentence to jail or prison, with execution suspended on conditions set by the court.47 Until the stroke of midnight on the last day of the term of the suspended sentence, the DA may seek revocation of all, or any part of, the sentence by filing a petition (the more common term is application) stating one or more violations of the conditions as grounds for revocation. Revocation of a felony suspended sentence for a drug or property crime subsequently reduced to a misdemeanor by state law (SQ 780) is limited to no more than the current maximum punishment for the crime.48

    The court must promptly arraign the defendant, who may plead by admitting or denying the allegations. If the defendant controverts the petition, the court must hold a hearing on the merits ≤ 20 days from the defendant’s plea of not guilty, or lose jurisdiction, unless the time limit is waived by the parties.49 The court retains power to determine a timely filed petition though the hearing occurs after the original sentence expires,50 and may revoke any unexecuted time, though it exceeds the end of the original sentence.51

    In the community sentence/punishment context, the court may similarly act upon a motion for modification of community punishment, including up to the maximum punishment, or to a sentence more favorable to the offender, upon ≥ 10 days notice to the parties; and may consider information from community sentencing staff and law enforcement about the offender and the reason for modification.52 The court may may revoke or accelerate the community punishment to the original sentence of imprisonment or other punishment available by law, granting day-for-day credit for any term of incarceration imposed as community punishment.53 The court may also impose sanctions including ≤ 6 months in jail, residential treatment, restrictive housing, or a halfway house; or incentives (reduction of community punishment) to obtain compliance with a plan of community punishment.54

    When failure to pay restitution is the alleged violation of probation, DOC must forward all payment information to the DA, who should allege non-payment in the petition. The offender can request remission or modification of the restitution order based on a material change of condition in the ability of comply with the order. If the court determines from evidence that restitution creates a manifest hardship on the offender or her immediate family, the court may cancel it in whole or part, or modify the terms or method of payment. If the court determines that a reduction in the restitution still due is warranted, the court shall equally apply the same percentage reduction to any court-ordered monetary obligation owed by the defendant including, but not limited to, fines, court costs and costs of incarceration.55

    The defendant in a revocation or modification hearing has a statutory right to counsel, to present her evidence, and to confront adverse witnesses.56 Constitutional due process standards are relaxed, but require fundamental fairness, notice, and opportunity to be heard.57 The right to confrontation is narrower than at trial, but revocation cannot be based entirely on hearsay.58 The rules of evidence do not apply. The court may admit hearsay under established exceptions, with substantial guarantees of trustworthiness.59 The DA must prove a probation violation by a preponderance of the evidence.60 The revocation order is appealable, and bail is allowable unless the violation was a new felony.61

    4.4 Earned credits for confinement

    Eligible offenders confined in DOC facilities are awarded credits for every day served in confinement according to the offender’s classification level as determined by DOC. Earned credits can also be reduced after an institutional disciplinary hearing and approval of the warden (and later restored with approval of a classification committee).62 The Legislature has excluded certain offenders and sentences from eligibility for earned credits, including inmates sentenced :

    • to life;
    • for causing the death of a law enforcement or corrections officer or employee acting within the scope of employment
    • to an intermediate revocation facility for violating probation
    • to imprisonment for an “85% crime”
    • to imprisonment for human trafficking63
    • Offenders convicted of certain drug manufacturing and trafficking crimes must serve either 50% or 85% of their sentences before becoming eligible for earned credits to reduce their sentence.64 Inmate classifications are determined every 4 months by the facility’s adjustment review committee according to DOC’s written guidelines.65 An inmate is assigned to one of four levels according to the following criteria:
    • Class level 1 inmates are:
      • not eligible to participate in class levels 2 through 4
      • and/or on escape status
    • Class level 2 inmates have:
      • been given a work, education, or program assignment
      • a good evaluation for participation in the assignment
      • and a good evaluation of hygiene and living area
    • Class level 3 inmates have:
      • been incarcerated ≥ 3 months
      • an excellent work, education, or program evaluation
      • and an excellent evaluation for hygiene and living area
    • Class level 4 inmates have:
      • been incarcerated ≥ 8 months
      • an outstanding work, education, or program evaluation
      • and an outstanding evaluation for hygiene and living area66

    Monthly earned credits for major offenders67 are Class 1 (0 credits), Class 2 (22 credits), Class 3 (33 credits), and Class 4 (44 credits).68 Minor offenders are allowed more credits at Class levels 3 (45 credits) and 4 (60 credits) than major offenders.69 Jail time served before transport to DOC is deducted from a prison sentence, and generally awarded Class 2 monthly credit (22 days), pending transport, unless the offender is convicted of a crime committed in jail while awaiting transport. Inmates may administratively appeal classification committee decisions on earned credits through the DOC grievance process.70

    The inmate may seek further review of a loss of earned credits by a petition filed in district court ≤ 90 days of notification of DOC’s decision.71 The reviewing court must determine whether the inmate was denied due process according to seven criteria,72 including written notice of the charge, an opportunity for hearing, a statement of the evidence and reasons for decision, and whether any evidence supports the administrative finding.73 Reviewing courts must not independently assess the weight or credibility of the evidence, and the sole remedy is to remand the matter to DOC for compliance with due process.74 Frivolous petitions can be sanctioned. Either party may appeal to the Oklahoma Court of Criminal Appeals.75

    4.5 Post-imprisonment supervision and post-appeal suspension

    Effective November 1, 2021, the Legislature repealed the requirement that every sentence of imprisonment (other than life without parole) must include DOC post-imprisonment supervision for 9 months to 1 year following the offender’s release from confinement.76 For sex offenders, however, post-imprisonment supervision must be ≥ (i.e., at least) 3 years of the maximum term of imprisonment. The Court may sanction a failure to comply with post-imprisonment supervision as other violations of conditional release.77 

    When a conviction is affirmed on appeal, the trial court may suspend the judgment and sentence, upon request by the defendant ≤ 10 days of the order of the Court of Criminal Appeals. The order granting or denying suspension is not appealable, and the 10-day time limit for filing of a defendant’s request is jurisdictional.78

    4.6 Judicial review of sentence

    Within 60 months of sentencing (including acceleration of a deferred sentence) or revocation of a term of probation, the court may direct another sentence be imposed in certain cases, if the the best interests of the public will not be jeopardized; but may not impose a deferred sentence. Applications seeking modification filed >12 months after initial sentence require DA approval and written notice to victims.79

    Inmates originally sentenced to complete the Drug Offender Work Camp may apply for modification beyond the 60 month time limitation. Inmates who have been in state or federal custody for a felony ≤ 10 years before the imposition of this sentence, or who pled guilty by agreement, or were sentenced by a jury, may not seek modification without the DA’s consent.80

    The reviewing court may order a DOC summary of the inmate’s needs, progress, and other information, allowing DOC ≥ 20 days to provide the report. Any hearing shall be in open court, after ≥ 21 days notice to DOC, the inmate, and counsel, and the district attorney, and provide a copy of the report and any other information to be considered. A sentence modified on appeal may be modified ≤ 60 months after the district court clerk’s receipt of the appellate mandate.81

    The court, after notice to the crime victim and opportunity for the victim to testify at a review hearing, may modify a life without parole (LWOP) sentence for a non-571 (i.e. non-violent drug trafficking and manufacturing crimes) crime after the defendant has served 10 years of the sentence, if the court finds the best interests of the public will not be jeopardized. The court may also review the sentence and further modify it within 60 months of the issuance of mandate in an appeal by the Court of Criminal Appeals.82

    4.7 Judicial review of fines and costs

    Trial courts may waive remaining fines, court costs, and fees,but not restitution, where the defendant been released from the custody, complied with all requirements since release, and made 24 months of timely payments after release. The court must have a hearing within 180 days of the prisoner’s release from DOC to determine ability to pay all outstanding court ordered debts. The court may then direct consolidation of all fines, fees, and costs into one order of payment.83 The court retains other authority to modify orders of restitution upon a proper showing of inability to pay or manifest hardship.

    References

    1. Under the version of the statute effective November 1, 2025, provisions for suspending a sentence “shall not apply to defendants being sentenced upon their third or subsequent to their third conviction of a felony.” The court may waive this bar upon written application of the DA. The application and waiver must be filed of record. 22 O.S.Supp.2025, § 991a(C). ↩︎
    2. 109 “Probation” is release subject to conditions imposed by the court and supervision by DOC or other court-designated provider. Supervision shall not ordinarily exceed 2 years, unless a petition to accelerate or revoke a deferred or suspended sentence is filed during the supervision, or as otherwise provided by law. The court may extend DOC’s supervision of a probationer to the expiration of the maximum term or terms of the sentence in the public interest. Supervision of sex offenders must begin immediately upon release from incarceration. 21 O.S.2021, § 991a(E). Supervision of sex offenders ≥ 3 years to the maximum term is authorized. § 991a(A)(1)(f). ↩︎
    3. Assault and/or battery with a dangerous weapon; aggravated assault and battery; burglary in the second degree; use of a firearm or offensive weapon to commit or attempt to commit a felony, or pointing a firearm; grand larceny; extortion, or obtaining a signature by extortion; fraud, or obtaining or attempting to obtain property by trick or deception; embezzlement; or caretaker abuse, neglect or exploitation. 22 O.S.2021, § 991a-16. ↩︎
    4. Incapacitated here means a mental or physical disability preventing effective protection of self or property. 22 O.S.2021, § 991a-15. ↩︎
    5. Perhaps “at least” 30 days makes more sense, given the court’s authority to order the confinement on non-consecutive nights or weekends. ↩︎
    6. 22 O.S.2021, § 991a-2 ↩︎
    7. Id. Nights are defined as from 6 p.m. to 8 a.m.; weekends are from 6 p.m. Friday to 8 a.m. Monday, subject to modification if the circumstances of a particular case require it. § 991a-2(F). ↩︎
    8. 22 O.S.2021, § 973a ↩︎
    9. See 22 O.S.2021, §§ 991a(A)(6); 991a-4.1; 22 O.S.2021, § 982. Non-violent felony is here defined as any felony except assault and battery with a dangerous weapon, aggravated assault and battery on a law officer, poisoning with intent to kill, shooting with intent to kill, assault with intent to kill, assault with intent to commit a felony, murder in the first degree, murder in the second degree, manslaughter in the first degree, kidnapping, burglary in the first degree, kidnapping for extortion, maiming, robbery, child beating, wiring any equipment, vehicle or structure with explosives, forcible sodomy, rape in the first degree or rape by instrumentation, lewd or indecent proposition or lewd or indecent act with a child under sixteen (16) years of age, use of a firearm or offensive weapon to commit or attempt to commit a felony, pointing firearms, rioting or arson in the first degree. 22 O.S.2021, § 991a-4.1(B)(3). The list is apparently based on, but not identical to, the definition of non-violent offenses in 57 O.S.2021, § 571. See also, 22 O.S.2021, § 991a-4.1. Community Service Sentencing Program restitution may be ordered paid to the victim or the Crime Victims Compensation Revolving Fund. § 991a-4.1(C)(7). ↩︎
    10. An offender eligible for a community sentence or punishment is one who has: (1) been convicted or entered a plea (other than not guilty) to a crime; (2) scored in other than the low range on a Level of Services Inventory or other recidivism risk assessment, (3) been convicted of at least one prior felony, and (4) is not otherwise prohibited by law, or the offender has had an assessment under § 3-704 of Title 43A which recommends community sentencing. A person convicted of or pleading other than not guilty to an offense listed 57 O.S.2021, §571(2) is ineligible for a community sentence or community punishment without the prosecutor’s consent, made a part of the record. A mentally ill or developmentally disabled offender, or offender with co-morbid substance abuse and mental illness, scoring the low range on the LSI or other assessment, may also be admitted with the prosecutor’s consent. 22 O.S.2022, §§ 988.2(A)(8); 988.18(B)(describing LSI or related assessment to be reviewed by court before sentencing). Community sentence or community punishment is a punishment imposed as a condition of a deferred or suspended sentence. 22 O.S.2021, § 988.2(A)(2); see also, 22 O.S.2021, § 988.8(A)(1-7); § 988.19(A)(court imposing community punishment must first defer or suspend sentence, then order community punishment as a condition of the sentence); § 988.19(B-I)(court may upon motion, after hearing, “modify any previous provision” of community sentence up to maximum punishment, and may revoke or accelerate community punishment). ↩︎
    11. 28 O.S.2021, § 101 (court costs allowed by law in criminal actions, in case of conviction, are part of the penalty, and if the defendant refuse to pay, must be enforced by imprisonment at $25 daily; $50 if defendant does useful labor. If the defendant is unable to pay a fine, fees, or costs, the amount must be entered on the judgment docket and collectible as for any other judgment). The schedule of fees allowed in criminal actions is at 28 O.S.2021, § 153. Court costs allowed by this section may not be waived. § 153(K). ↩︎
    12. 22 O.S.2021, § 979a ↩︎
    13. 22 O.S.2021, § 991a(A)(1)(a). The obligation to pay restitution is invariably limited to an amount payable “without imposing manifest hardship on the defendant or the immediate family and if the extent of the damage to the victim is determinable with reasonable certainty. § 991f, generally. The defendant may petition the court at any time for a change in restitution based on a changed condition materially affecting the ability to pay. § 991d(C)(2) ↩︎
    14. As to all of the the foregoing see specifically, 22 O.S.2021, §§ 991a(A)(1)(d), (g), (h)(without manifest hardship to the defendant), (i), (j), (k); and § 991a(A)(12). ↩︎
    15. 22 O.S.2021, § 991a(A)(1)(r) (based on ability to pay); 22 O.S.2021, § 988.9(offender sentenced to community sentence requiring supervision shall pay a supervision fee ≤ $40 per month, which the agency may waive in cases of hardship, and an administrative fee to support the local system ≤ $20 per month. ↩︎
    16. 22 O.S.2021, § 991a(A)(1)(hh) (unless offender is supervised by the DA). The DA may waive any part of the fee in the best interests of justice, but the court may not waive the costs of prosecution or incarceration entirely. Id; see also, 22 O.S.2021, § 979a(D). If the court decides reducing fines, costs, costs of prosecution, and costs of incarceration is warranted, the court shall equally apply the same percentage reduction to fines, costs, costs of prosecution, and costs of incarceration. §§ 979a(D), 991a(A)(1)(hh) ↩︎
    17. 22 O.S.2021, § 991a(A)(1)(e). Night and weekend jail confinement for persons serving suspended sentences is specifically authorized by § 991a(A)(1)(v). See also, 22 O.S.2021, § 991a(A)(2); 28 O.S.2021, § 101 (court costs allowed by law in criminal actions, in case of conviction, are part of the penalty, and if the defendant refuse to pay, must be enforced by imprisonment at $25 daily; $50 if defendant does useful labor. If the defendant is unable to pay a fine, fees, or costs, the amount must be entered on the judgment docket and collectible as for any other judgment). The schedule of fees allowed in criminal actions is at 28 O.S.2021, § 153. Court costs allowed by this section may not be waived. § 153(K); 22 O.S.2021, § 979a; § 991a(A)(1)(a). The obligation to pay restitution is invariably limited to an amount payable “without imposing manifest hardship on the defendant or the immediate family and if the extent of the damage to the victim is determinable with reasonable certainty. § 991f, generally. The defendant may petition the court at any time for a change in restitution based on a changed condition materially affecting the ability to pay. § 991d(C)(2); 22 O.S.2021, § 991a(A)(1)(b); 22 O.S.2021, § 991a(A)(1)(d); 22 O.S.2021, § 991a(A)(1)(g); 22 O.S.2021, § 991a(A)(1)(h)(without manifest hardship to the defendant); 22 O.S.2021, § 991a(A)(1)(i); 22 O.S.2021, § 991a(A)(12); 22 O.S.2021, § 991a(A)(1)(j); 22 O.S.2021, § 991a(A)(1)(k); 22 O.S.2021, § 991a(A)(1)(r) (based on ability to pay); 22 O.S.2021, § 988.9(offender sentenced to community sentence requiring supervision shall pay a supervision fee ≤ $40 per month, which the agency may waive in cases of hardship, and an administrative fee to support the local system ≤ $20 per month. 22 O.S.2021, § 991a(A)(1)(hh) (unless offender is supervised by the DA). The DA may waive any part of the fee in the best interests of justice, but the court may not waive the costs of prosecution or incarceration entirely. Id; see also, 22 O.S.2021, § 979a(D). If the court decides reducing fines, costs, costs of prosecution, and costs of incarceration is warranted, the court shall equally apply the same percentage reduction to fines, costs, costs of prosecution, and costs of incarceration. §§ 979a(D), 991a(A)(1)(hh); 22 O.S.2021, § 991a(A)(1)(y) ↩︎
    18. 22 O.S.2021, § 991a(A)(1)(c)(consistent with offender’s employment and family responsibilities) ↩︎
    19. 22 O.S.2021, § 991a(A)(1)(l) ↩︎
    20. 22 O.S.2021, § 991a(B) ↩︎
    21. 22 O.S.2021, § 991a(A)(1)(m). Such programs are described at 22 O.S.2021, § 991a(H)(3) ↩︎
    22. 22 O.S.2021, § 991a(A)(1)(n) ↩︎
    23. 22 O.S.2021, § 991a(A)(1)(o) ↩︎
    24. 22 O.S.2021, § 991a(A)(1)(p). Such conditions include alcohol and substance abuse, mental, emotional, or physical health, propensity for violence, antisocial behavior, deviant sexual behavior, child development, parenting assistance, vocational-technical skills, domestic relations, literacy, education, or other identifiable, treatable deficiency for which a certified community provider or program with significant positive impact exists. ↩︎
    25. 22 O.S.2021, § 991a(A)(1)(q) ↩︎
    26. 22 O.S.2021, § 991a(A)(1)(s). Supervision ordinarily shall be ≤ 2 years, except sex offenders may be supervised longer, and supervision may be extended to the maximum term of the sentence in the public interest as determined by DOC Probation and Parole. 22 O.S.2021, § 991a(E). Community sentences may not require active supervision for ≥ 3 years, but continue for completion of payments of obligations. ↩︎
    27. 22 O.S.2021, § 991a(A)(1)(t) ↩︎
    28. 22 O.S.2021, § 991a(A)(1)(u); see also, generally, 22 O.S.2021, § 988.1 et seq. (Community Sentencing Program); and 22 O.S.2021, § 988.20 (≤ 30 days in jail, treatment facility, restrictive housing, or halfway house as community sentencing sanction or incentive) ↩︎
    29. 22 O.S.2021, § 991a(A)(1)(w), (x) ↩︎
    30. 22 O.S.2021, §§ 991a(A)(1)(z). A DNA sample is mandatory for all persons convicted of a felony or receiving any kind of probation for an offense requiring sex offender registration, including a deferred judgment for a registerable sex offense. Misdemeanors requiring a DNA sample include convictions for assault and battery, domestic abuse, stalking, possession of a Schedule 4 controlled drug, outraging public decency, resisting arrest, escape or attempting to escape, eluding a police officer, peeping tom, discharging of a firearm, threatening an act of violence, breaking and entering a dwelling place, destruction of property, negligent homicide, or causing a personal injury accident while driving under the influence of any intoxicating substance. § 991a(I). ↩︎
    31. 22 O.S.2021, §§ 991a(A)(1)(cc) ↩︎
    32. 22 O.S.2021, §§ 991a(A)(1)(aa), (bb) (if the defendant has the skill to repair or restore the property and the victim agrees to repair or restoration) ↩︎
    33. Defined in 21 O.S.2021, § 1541.4 ↩︎
    34. 22 O.S.2021, §§ 991a(A)(1)(gg) ↩︎
    35. 22 O.S.2021, § 991a-3 ↩︎
    36. 22 O.S.2021, §§ 991a(A)(1)(dd); § 991a(A)(8), (9), and (11). These offender-specific statutes are redundant in light of the court’s broad authority to require offense-related treatment and counseling under § 991a(A)(1)(p). ↩︎
    37. Includes violators of 21 O.S.2021, §§ 681 (assault with intent to commit felony involving sexual assault), 741 (kidnapping involving sexual abuse or exploitation), 843.1 (sexual abuse or exploitation by recataker14, 843.5 (child sexual abuse or exploitation), 865 et seq (trafficking children), 885 (incest), 886 (crime against nature), 888 (forcible sodomy), 891 (enticing children), 1021 (soliciting minor to participate in pornography), 1021.2 (procuring minor participation in child pornography), 1021.3 (parental consent to participation of minor in pornograpahy), 1040.13a (distributing obscene material), 1087 (offering child for prostitution), 1088 (encouraging child prostitution), 1111.1 (rape by instrumentation), 1115 (rape), and 1123 (lewd or indecent acts or proposal to child). ↩︎
    38. 22 O.S.2021, §§ 991a(A)(1)(f) ↩︎
    39. 22 O.S.2021, §§ 991a(A)(1)(ee)(based on ability to pay) ↩︎
    40. 57 O.S.2021, § 584(O). A habitual or aggravated sex offender is a person who has been convicted of sexual abuse or exploitation of a child under 21 O.S.2021, § 843.5, assault with intent to commit a felony sexual assault under 21 O.S.2021, § 681, kidnapping involving sexual abuse or exploitation under 21 O.S.2021, § 741, an offense involving human trafficking for commercial sex under 21 O.S.2021, § 748, sexual abuse or exploitation by caretaker under 21 O.S.2021, § 843.1, child endangerment involving sexual abuse of a child under 21 O.S.2021, § 852.1, child trafficking under 21 O.S.2021, § 865 et seq., incest under 21 O.S.2021, § 885, crime against nature under 21 O.S.2021, § 886, forcible sodomy under 21 O.S.2021, § 888, enticing children involving sexual abuse or exploitation under 21 O.S.2021, § 891, child pornography crimes under 21 O.S.2021, 21 O.S.2021, §§ 1021, 1021.2, 1021.3, 1024.2, 1040.12a, 1040.13, 1040.13a, 1087, 1088, 1111.1, 1114 or lewd molestation under 21 O.S.2021, 21 O.S.Supp.2022, § 1123, after a previous conviction of, or suspended or deferred sentence for committing attempting, or in the case of a foreign jurisdiction, conspiring to commit one of the foregoing crimes, and who entered the State after November 1, 1997. ↩︎
    41. 22 O.S.2021, §§ 991a(A)(13-15) ↩︎
    42. 22 O.S.2021, § 991a(A)(16) ↩︎
    43. 22 O.S.2021, §§ 991a(A)(1)(hh) ↩︎
    44. 22 O.S.2021, §§ 991a(A)(1)(hh); § 991b(C)(1-8) ↩︎
    45. 22 O.S.2021, § 991b(D) ↩︎
    46. 22 O.S.2021, § 991b(B) ↩︎
    47. Hemphill v. St., 1998 OK CR 7 (suspension order is not a separate sentence but a condition limiting execution of sentence.) A suspended sentence does not vacate a term of confinement; its execution is merely deferred. A convicted person is granted a conditional favor postponing punishment, which can be withdrawn. When the suspension is revoked, the offender is punished for the crime of conviction, not for violating the terms of probation. Burnham v. St., 2002 OK CR 6 (quoting Ex parte Boyd, 1942 OK CR 21) ↩︎
    48. 21 O.S.2021, § 991b(G)  ↩︎
    49. The DA may dismiss the petition without prejudice once for good cause, but any successor petition on those grounds must be filed within 45 days of dismissal of the first petition. 22 O.S.2021, § 991b(A), (B). ↩︎
    50. Crowels v. St., 1984 OK CR 29 ↩︎
    51. Hemphill v. St. 1998 OK CR 7; Degraffenreid v. St., 1979 OK CR 88 ↩︎
    52. 22 O.S.2021, § 988.19(C), (E) ↩︎
    53. 22 O.S.2021, § 988.20(A) ↩︎
    54. 22 O.S.2021, § 991b(D) ↩︎
    55. 21 O.S.2021, § 991b(E) ↩︎
    56.  22 O.S.2021, § 991b(F) ↩︎
    57. Gagnon v. Scarpelli, 411 U.S. 778 (1973) ↩︎
    58.  Wortham v. St., 2008 OK CR 18; Robinson v. St., 1991 OK CR 44; Tilden v. St., 2013 OK CR 10 ↩︎
    59. 12 O.S.2021, § 2103 (B)(2) (except for rules governing valid claims of privilege, rules of evidence do not apply in probation revocation proceeding); Hampton v. St., 2009 OK CR 4 (hearsay that defendant purchased matches to manufacture methamphetamine properly admitted; hearsay was verified by videotape, discovery of matchboxes with missing striker plates and meth lab near defendant’s residence); Wortham v. St., 2008 OK CR 18 (due process not violated when transcript of prior hearing at which defendant was afforded opportunity to cross-examine witnesses is admitted at revocation hearing, without showing that witnesses are unavailable). ↩︎
    60. Fleming v. St., 1988 OK CR 162 ↩︎
    61. Robinson v. St., 1991 OK CR 44; Tilden, 2013 OK CR 10 ↩︎
    62. 57 O.S.2021, § 138(A), (C) ↩︎
    63. 21 O.S.Supp.2025, § 13.1; 21 O.S.Supp.2022, § 748. Achievement credits for completion of a college degree, high school diploma, vocational certificate, substance abuse or other programs are allowed. 57 O.S.2021, § 138(H) ↩︎
    64. 63 O.S.2021, §§ 2-401(G), 2-415 (repeat and aggravated drug trafficking, aggravated manufacturing). ↩︎
    65. 57 O.S.2021, § 138(F) ↩︎
    66. 57 O.S.2021, § 138(D)(1)(a-d). Classification committees are directed by statute to consider all aspects of criteria in current DOC policies, including rehabilitation, obtaining job skills and education, participation in substance abuse programs, productivity, cooperative general behavior, and appearance. § 138(B), (D)(3)(a-d), (D)(4)(a-e).  ↩︎
    67. Major offenders is my term for offenders who have ever been convicted, sentenced as a youthful offender, or adjudged delinquent for any of 65 enumerated crimes in 57 O.S.2021, § 138(E)(1-65), all of which are either violent, involve personal injury, sexual abuse or exploitation, pornography, or the use or possession of weapons or explosives. Major offenders are always ineligible for the higher Class 3 and 4 earned credits allowed for offenders never convicted or sentenced for a § 138(E) offense (here called minor offenders). 57 O.S.2021, § 138(E). ↩︎
    68. 57 O.S.2021, § 138(D)(2)(b) ↩︎
    69. 57 O.S.2021, § 138(D)(2)(c) ↩︎
    70. 57 O.S.2021, § 138(G)  ↩︎
    71. 57 O.S.2021, § 138(G) ↩︎
    72. 57 O.S.2021 § 564.1 (A)-(C)(specifying contents of petition and answer) ↩︎
    73. In Velasco v. DOC, 2011 OK CR 11, the Court of Criminal Appeals held that § 564.1 procedures were intended to parallel the procedural due process required for prison disciplinary proceedings in Wolff v. McDonnell, 418 U.S. 539, 557 (1974). The due process requirement that “some evidence” support a revocation, later recognized in Sup’t. v. Hill, 472 U.S. 445, 453 (1985) is embodied in the “any evidence” standard employed at § 564.1(D)(7). ↩︎
    74. 57 O.S.2021, § 564.1 (D)(1-7)(specifying the scope of judicial review) ↩︎
    75. 57 O.S.2021, § 564.1 (E) ↩︎
    76. O.S.L.2021, § 447, repealing 22 O.S.2021, § 991a-21. In Friday v. St., 2016 OK CR 16, the Court held that “a court is only allowed to include a term of post-imprisonment supervision in the sentence of a person convicted of a felony and sentenced to a term of confinement.” The trial court’s order revoking a suspended sentence should not have included a new term of post-imprisonment supervision.  ↩︎
    77. 22 O.S.2021, § 991a(A)(1)(f). The enumerated sex crimes are child sexual abuse and exploitation (21 O.S.2021, § 843.5); assault with intent to commit a felony sexual assault (21 O.S.2021, § 681); kidnapping for sexual exploitation (21 O.S.2021, § 741); sexual abuse or exploitation by caretaker (21 O.S.2021, § 843.1); trafficking in children (21 O.S.2021, § 865 et seq.); incest (21 O.S.2021, § 885); sodomy (21 O.S.2021, § 886); forcible sodomy (21 O.S.2021, § 888); enticing children (21 O.S.2021, § 891); child pornography crimes (21 O.S.2021, §§ 1021, 1021.2, 1021.3, 1040.13a); child prostitution crimes (21 O.S.2021, §§ 1087, 1088); rape (21 O.S.2021, §§ 1111.1, 1115); and lewd molestation (21 O.S.Supp.2022, § 1123).  ↩︎
    78. 22 O.S.2021, § 994; Pegg v. St., 1983 OK CR 26 ↩︎
    79. 22 O.S.2021, § 982a(A)(1) ↩︎
    80. 22 O.S.2021, § 982a(A)(2), (3) ↩︎
    81. 22 O.S.2021, § 982a(C)-(D) ↩︎
    82.  22 O.S.2021, § 982a, 982a(F) ↩︎
    83. 21 O.S.2021, § 983a. ↩︎