910 P.2d 1084 (Okla.Crim.App. 1996), C-91-309, Wallace v. State

Docket Nº:C-91-309, PC-95-1246.
Citation:910 P.2d 1084
Party Name:George Kent WALLACE, Petitioner, v. The STATE of Oklahoma, Respondent.
Case Date:February 01, 1996
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 1084

910 P.2d 1084 (Okla.Crim.App. 1996)

George Kent WALLACE, Petitioner,


The STATE of Oklahoma, Respondent.

Nos. C-91-309, PC-95-1246.

Court of Criminal Appeals of Oklahoma.

February 1, 1996.

Page 1085

Randy A. Bauman, Oklahoma City, for Petitioner George Kent Wallace.


Petitioner George Kent Wallace through his attorney, Randy A. Bauman, has filed two documents with this Court: an Emergency Application for Stay of Execution; and an Initial Motion for Discovery. We granted the application for stay of execution in a separate Order filed November 21, 1995, and determined that order was an extension of proceedings in connection with this Court's mandatory sentence review of his conviction. For that reason we reference that case number in the style of this case. We now address the Motion for Discovery. For the reasons given below, we find we cannot grant Petitioner's request.

Although Petitioner has filed his initial motion for discovery in this case, he has not yet filed his verified application for post-conviction relief with this Court as required by 22 O.S.Supp.1995, § 1089. The question therefore arises whether this Court has jurisdiction in Petitioner's case to order discovery. We hold we do not. 1


    A review of 22 O.S.Supp.1995, § 1089 reveals the procedural focus of the new capital post-conviction relief statute is on the application itself. See 22 O.S.Supp.1995, §§ 1089(A), 1089(C), 1089(D). It seems clear that this Court has a continuing jurisdiction in all death cases in which the direct appeal is filed after November 1, 1995: the language of the act specifically states that the application for post-conviction relief "shall be filed in the Court of Criminal Appeals within ninety (90) days from the date the appellee's brief on direct appeal is filed or, if a reply brief is filed, ninety (90) days from the filing of that reply brief with the Court of Criminal Appeals on the direct appeal." 22 O.S.Supp.1995, § 1089(D)(1). Therefore, this Court has the power to act in the post-conviction portion of the case when the direct appeal is pending before the Court even before an application is filed by virtue of its having jurisdiction of the case through the direct appeal process.

    However, the statute is less clear when dealing with the so-called "transition" cases, such as Petitioner's. The applicable...

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