Duvall v. State
| Decision Date | 28 March 1994 |
| Docket Number | No. PC-93-644,PC-93-644 |
| Citation | 871 P.2d 1386 |
| Parties | John Wayne DUVALL, Petitioner, v. The STATE of Oklahoma, Respondent. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
ORDER DENYING MOTION TO RECONSIDER DISMISSAL, REINSTATE
APPEAL, AND STAY EXECUTION DATE
Following this Court's Order Dismissing Petitioner's Application for Post-Conviction Relief in Duvall v. State, 869 P.2d 332 (Okl.Cr.1994), Petitioner has filed a Motion for Reconsideration of Dismissal, Request for Reinstatement of Appeal, and Request for Stay of Execution. In his Motion, Petitioner states this Court misstated the procedural history of the case 1; argued he filed no Petition in Error because none was required claimed this Court cannot dismiss his appeal because of his failure to file the Petition in error; claimed the requirement to do so in his case amounted to an unconstitutionally vague requirement and denied him due process of the law; and claimed his appeal was dismissed because of a technicality.
Concerning the Petition in Error, the gist of Petitioner's argument is because this Court had not required a petition in the past, it is not required now. In its Order, this Court held such a petition was required.
In reaching this holding, we did what we have always done: resorted first to 22 O.S.1991, § 1089 and Section Nine of this Court's Rules, both of which govern post-conviction appeals in capital cases; then resort to general provisions of the post-conviction relief act and other Court Rules in those instances where the requirements of Section Nine and 22 O.S.1991, § 1089 are unclear. There is nothing new or startling about this procedure. Cf. VanWoundenberg v. State, 818 P.2d 913, 915 (Okl.Cr.1991) (); Stafford v. State, 815 P.2d 685, 686 (Okl.Cr.1991) (same); Hale v. State, 807 P.2d 264, 266 (Okl.Cr.1991) (). Section 1087 specifically requires a Petition in Error to be filed to perfect an appeal of a denial of post-conviction relief and Section 1089(D) adopts Section 1087 as a part of the procedure in a capital case.
Nor need we be detained long on Petitioner's argument this Court's rules cannot define its jurisdiction. There are two points which settle Petitioner's argument.
First, although Petitioner cites the correct statutory and constitutional provisions which give this Court general jurisdiction, see Okla. Const. art. VII, § 4 and 20 O.S.1991, § 40, Petitioner overlooks another applicable statute, which provides:
The procedure for the filing of an appeal in the Court of Criminal Appeals shall be as provided in the Rules of the Court of Criminal Appeals; and the Court of Criminal Appeals shall provide by court rules, which will have the force of statute, and be in furtherance of this method of appeal: (1) [procedure dictating preparation of record]; (2) the procedure to be followed for the completion and submission of the appeal taken hereunder; and (3) the procedure to be followed for filing a petition for and the issuance of a writ of certiorari. 2
22 O.S.1991, § 1051(b). Petitioner also overlooks another provision, which reads:
[The Court of Criminal Appeals] shall have power, upon affidavit or otherwise, to ascertain such matters of fact as may be necessary to the exercise of its jurisdiction.
20 O.S.1991, § 42. Clearly, then, this Court has the authority to determine, in a criminal matter, when it has the power to proceed.
Second, and more to the point, we fear Petitioner overlooks crucial language in our Order dismissing his Application. While a portion of the Order dealt with the necessity of having a Petition in Error filed, the portion of the opinion containing the jurisdictional language deals not with the Petition in Error, but the order of the district court. See Duvall, 869 P.2d at 334.
The absence of this district court order is not a mere procedural formality as Petitioner would have us believe; without the order, this Court has no way to determine in what way the district court addressed his claims below, or even if those claims were addressed at all. This Court, with very limited exceptions, has only appellate jurisdiction. If the district court did not act on a proposition, or if a proposition was not given to the district court, we could be acting as a court of original jurisdiction. This we cannot do. Okla. Const. art. VII, § 4; 20 O.S.1991, § 40.
It is because of this important point, and not simply the requirement of a Petition in Error, that Petitioner is not deprived of due process or equal protection of the laws because he did not file a Petition in Error. Nowhere does Petitioner argue--nor can he--that this Court has addressed an appeal without the Order or Judgment and Sentence of the court below. It is for this same reason we do not deem the failure to provide such Order or Judgment and Sentence a mere technical defect.
Simply put, Petitioner had not only the time originally allotted, but three (3) extensions of time in which to present this Court with the record it needed to obtain jurisdiction and adjudicate his appeal. He failed to do so. By his failure to accomplish this within the time provided by state law, he has defaulted on his right to have his post-conviction appeal heard in this Court.
For these reasons, we hereby DENY Petitioner's Motion for Reconsideration of Dismissal and his Request for Reinstatement of his Appeal. Because his Request for a Stay of Execution is based on the above points which we have rejected, said request is also DENIED. 3 The Clerk of this Court is ordered to issue the Mandate forthwith.
IT IS SO ORDERED.
/s/ Gary L. Lumpkin
/s/ Charles A. Johnson
/s/ Reta M. Strubhar
LANE, J., dissents and files opinion.
I dissent to the part...
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...these statutes as giving it "the authority to determine, in a criminal matter, when it has the power to proceed." Duvall v. Oklahoma, 871 P.2d 1386, 1388 (Okla.Crim.App.1994). In light of the broad powers afforded the Court of Criminal Appeals under Oklahoma law, as well as the lack of mand......
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