OUJI-CR 10-21
RETURN OF VERDICT --
PRIOR CONVICTIONS CONTESTED (SECOND STAGE)
By your verdict in the first part of this trial you have already found the defendant guilty of the crime of [Crime Charged]. You must now determine the proper punishment.
The defendant has been charged with having previously been convicted of: [List Prior Convictions (and if Applicable, Classifications]. The law presumes that the defendant has NOT been previously convicted as the State has charged. You may consider the previous conviction(s) only if the State has proved beyond a reasonable doubt:
1. The fact of the conviction(s); and
2. That the defendant is the same person who was previously convicted.
The punishment for [Crime Charged] after (2 [or more])/(3 [or more]) previous convictions is imprisonment in the State penitentiary for a term of [Specify Term Provided in 21 O.S. 2021 & Supp. 2024, §§ 20L(C), 20M(C), 20N(C), 20O(C), 20P(C), 51.1(B), or 51.1(C)] years. [If convicted, the defendant must serve at least [Specify Applicable Percentage] of the sentence imposed before release from custody including release to electronic monitoring.] If you find the defendant guilty of [Crime Charged] after (2 [or more])/(3 [or more]) previous convictions, you shall return a verdict of guilty by marking the verdict form appropriately, fill in the appropriate space on the verdict form and return the verdict to the court. If you have a reasonable doubt of the defendant's guilt to the charge of [Crime Charged] after (2 [or more])/(3 [or more]) previous convictions, you shall then consider whether the defendant is guilty of [Crime Charged] after 1/(1 or 2) previous conviction.
The punishment for [Crime Charged] after 1/(1 or 2) previous conviction(s) is imprisonment in the State penitentiary for a term of [Specify Term Provided in 21 O.S. 2021 & Supp. 2024, § 20L(C), 20M(C), 20N(C), 20O(C), 20P(C), 51.1(A), or 51.1a] years. [If convicted, the defendant must serve at least [Specify Applicable Percentage] of the sentence imposed before release from custody including release to electronic monitoring.] If you find the defendant guilty of [Crime Charged] after 1/(1 or 2) previous conviction(s), you shall return a verdict of guilty by marking the verdict form appropriately, fill in the appropriate space on the verdict form and return the verdict to the court. If you have a reasonable doubt of the defendant's guilt to the charge of [Crime Charged] after 1/(1 or 2) previous conviction, you shall then determine the proper punishment for the crime of [Crime Charged] without regard to a previous conviction.
The crime of [Crime Charged] without a previous conviction is punishable by imprisonment in the State penitentiary for a term of [Range of Punishment]. [If convicted, the defendant must serve at least [Specify Applicable Percentage] of the sentence imposed before release from custody including release to electronic monitoring.]
When you have decided on the proper punishment, you shall fill in the appropriate space on the verdict form and return the verdict to the Court.
______________________________
Statutory Authority: 21 O.S. 2021 & Supp. 2024, §§ 20L, 20M, 20N, 20O, 20P, 51.1, 51.1a.
Notes on Use
This instruction should be used for the second stage of the jury deliberation in cases where sentence enhancement is sought for prior convictions. The Oklahoma Sentencing Modernization Act of 2024 (the “Sentencing Act”) is effective beginning on January 1, 2026, and it applies only to crimes committed on or after that date. Witherow v. State, 2017 OK CR 17, ¶ 6, 400 P.3d 902, 904. For crimes committed before January 1, 2026, courts should omit references to the statute’s classifications in the instructions.
The sentencing enhancement provisions in 21 O.S. 2021, § 51.1 differ from those in 21 O.S. Supp. 2024 §§ 20L, 20M, 20N, 20O, or 20P. Under 21 O.S. 2021, § 51.1, there are two levels of enhancement: for one prior conviction and the other for two or more prior convictions. However, under the Oklahoma Sentencing Modernization Act of 2024, the two levels of sentencing enhancement are one level for one or two prior Class C or D convictions and the other level for three or more prior Class C or D convictions (or one or more Class Y, Class A, or Class B convictions). See the chart below.
The trial judge should select the appropriate enhancement level to instruct the jury. All paragraphs of the instruction should be used where the defendant is charged with 2 or more prior convictions under 21 O.S. 2021, § 51.1 or 3 or more prior convictions under 21 O.S. Supp. 2024, §§ 20L, 20M, 20N, 20O, or 20P, but the third paragraph should be omitted if the defendant is charged with only 1 prior conviction under 21 O.S. 2021, § 51.1, or 1or 2 prior Class C or D convictions under 21 O.S. Supp. 2024, §§ 20L, 20M, 20N, 20O, or 20P.
This template does not cover all possible combinations of prior convictions. Trial courts should customize this Instruction to fit the particular case.
If there are multiple counts, the pattern for this instruction should be repeated for each count.
A Verdict Form for the Second Stage where two prior convictions are charged is provided in OUJI-CR 10-22, infra.
Committee Comments
The prosecution has the burden of proving that the defendant on trial is the same person as the defendant listed on a prior judgment of conviction. Cooper v. State, 1991 OK CR 54, ¶¶ 6-8, 810 P.2d 1303, 1306 (overruling Henager v. State, 1986 OK CR 20, ¶¶ 46-48, 716 P.2d 669, 676).
The realities of sentencing under the Sentencing Modernization Act of 2024 may be more complex than this Instruction addresses. Cases that might not be accounted for in this Instruction include: those in which the defendant’s prior convictions are an element of the offense; cases in which the defendant has prior convictions under both Classes A, B, or Y and C or D; and cases in which the defendant has convictions for offenses from other jurisdictions that differ in material ways from offenses under Oklahoma law.
Historical data
(2025 Supp.)
Amended by Order of the Oklahoma Court of Criminal Appeals; 2025 OK CR 13; effective September 2, 2025; (superceded document available)