Kordelski v. Cook
| Decision Date | 19 December 1980 |
| Docket Number | No. H-80-722,H-80-722 |
| Citation | 621 P.2d 1176 |
| Parties | David Michael KORDELSKI, Petitioner, v. The Honorable David M. COOK, District Judge of Oklahoma County, Oklahoma, Respondent. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
On May 16, 1979, the petitioner was convicted of Carrying a Firearm, After Former Conviction of a Felony, in the District Court of Oklahoma County, Case No. CRF-79-53. He was sentenced to one (1) year in prison and posted an appeal bond in the amount of One Thousand Dollars ($1,000.00). Thereafter, on October 24, 1980, the District Attorney for Oklahoma County applied to have the petitioner's bond revoked on the ground that the petitioner is "a danger to society." The respondent judge revoked the appeal bond and the petitioner seeks review of that order by habeas corpus.
The petitioner first maintains that the District Court did not have jurisdiction to hear the application. He argues that once an appeal is perfected exclusive jurisdiction over the case rests with the Court of Criminal Appeals, and the District Court is without jurisdiction over the case. The cases cited do support this proposition, but they all construe statutes that have been repealed. Ex parte Tyler, 2 Okl.Cr. 455, 102 P. 716 (1909), dealt with Laws 1905, § 1, art. II, c. 29, p. 334, which amended Statutes 1903, § 5612; and Killough v. State, 6 Okl.Cr. 311, 118 P. 620 (1911), applied Compiled Laws 1909, § 6951. All the later cases cited rely on these two cases, the latest being Price v. State, Okl.Cr., 396 P.2d 670 (1964). The Application to Revoke and Deny Bond filed by the District Attorney in the District Court is as follows:
Comes now ROBERT H. MACY, District Attorney of Oklahoma County, State of Oklahoma, and shows to the Court that the above-named Defendant is charged with the crime of BURGLARY OF AN AUTO AFCF and POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE AFCF, and is presently at liberty on a bond in the amount of $7,500 (total); that Defendant has been convicted by a jury and the jury has assessed punishment at 15 years on OBTAINING CONTROLLED DANGEROUS SUBSTANCES and one (1) year on CARRYING A WEAPON; that said Defendant has been bound over for trial in Cleveland County, Oklahoma on a charge of ROBBERY WITH A DANGEROUS WEAPON, and in Payne County, Oklahoma on a charge of OBTAINING CONTROLLED DANGEROUS SUBSTANCES; that said Defendant is a danger to society and that bond should be denied.
WHEREFORE, Plaintiff prays that the Defendant be immediately taken into custody and brought before this Court to determine if said Bond should be revoked and Defendant be denied bond and that said Defendant be committed to the Sheriff of Oklahoma County, Oklahoma, pending a hearing on this Application.
Dated this 24th Day of October, 1980.
Both of the statutes construed in Tyler and Killough, supra, were precursors of 22 O.S. 1961, §§ 1057-1062. But in 1969, sections 1057 and 1059-1061 were repealed. 1 The new sections pertaining to appeal bonds are set out in Laws 1969, c. 182, § § 2-4, now 22 O.S. 1971, § § 1077-1079. Under these sections it is clear that the jurisdiction for all rulings relating to an appeal bond is vested in the District Court.
(T)he granting or refusal of bail after judgment of conviction in all other felony cases shall rest in the discretion of the court, however, if bail is refused, the trial court shall state the reason therefor. 22 O.S. 1971, § 1077 (Emphasis added).
In reading 22 O.S. 1971, § 1078, two things are apparent. First, the section must be read in conjunction with Section 1077, supra, because both sections were part of a single act of the Legislature. Second, in section 1078 reference is sometimes to "the court" and other times to "the appellate court." The clear inference is that when the Legislature said "the court" they were not making reference to the appellate court. Accordingly, this Court construes Section 1078 as follows:
When bail is allowed (by the district court), the (district) court shall fix the amount of the appeal bond and the time in which the bond shall be given in order to stay the execution of the judgment pending the filing of the appeal in the appellate court, and until such bond is made (the district court) shall hold the defendant in custody. If the bond be given in the time fixed by the (district) court, the execution of the judgment shall be stayed during the time fixed by law for the filing of the appeal in the appellate court. If the appeal is filed within the time provided by law, then the bond shall stay the execution of the sentence during the pendency of the appeal, subject to the power of the (district) court to require a new or additional bond when the same is by the (district) court deemed necessary. If the bond is not given within the time fixed, or if given and the appeal not be filed in the appellate court within the time provided by law, the judgment of the (district) court shall immediately be carried into execution. 22 O.S. 1971, § 1078.
Viewing the present case in light of this construction, we hold that the District Court was acting within the proper exercise of its jurisdiction in revoking the petitioner's bond. The respondent judge's order read in part:
From the testimony of the witnesses that appeared here today, there were three, I find that in Case No. CRF-79-331, the District Court of Pottawatomie County, Oklahoma, this same Defendant, sustained a conviction for a felony on October 27, 1979, for attempting to obtain a controlled dangerous substance. Pursuant to the verdict of the Jury, he was sentenced to fifteen years.
I further find that in CRF-80-419, which is pending in the District Court of Cleveland County, Oklahoma, this Defendant is charged with robbery with firearms.
And, I further find that in CRF-80-204, pending in the District Court of Payne County, Oklahoma, this Defendant has been bound over for trial after Preliminary Hearing for attempting to obtain drugs by fraud and deceit.
I further find in CRF-80-4142, which is pending in the District Court of Oklahoma County, Oklahoma, wherein this Defendant is charged with burglary in the second degree after a former conviction of a felony. The Preliminary Hearing is set and is now pending before a Judge of this Court, set for November 13th, 1980. In all of these cases, he is out on bond.
From all of the totality of this evidence, I infer that he is, as I have stated, a professional criminal. This has been like a catalog of crime. It is disgusting. I deny bail for these reasons. He will be remanded in the custody of the Sheriff. In that connection, he will be delivered to the Warden of the State Penitentiary for the purpose of entering upon the execution of this one-year sentence which I sentenced him on.
This argument is therefore without merit.
The petitioner's other argument is that the only proper purpose of bail is to insure a defendant's presence at required court proceedings. This being true, bail could not be properly revoked due to "danger to society". However, this argument is grounded on cases construing the art. II, § 8, right to bail in the Oklahoma Constitution. Due to the clear language of art. II, § 8, 2 it has been held that there is no implied "public safety" exception to the right to bail, and the only factor in setting bail is insuring appearance. 3 See Petition of Humphrey, Okl.Cr., 601 P.2d 103 (1979). However, art. II, § 8 only governs the right to bail prior to conviction, Ex Parte Williams, 63 Okl.Cr. 395, 75 P.2d 904 (1938), Wainwright v. State, 11 Okl.Cr. 46, 141 P. 1120 (1914), and bail on appeal is governed purely by statute. Therefore, both Petition of Humphrey, supra, and Ex Parte Houghton, 1 Okl.Cr. 302, 97 P. 1021 (1908), cited by the petitioner, are distinguishable in that they involve the right to bail pending trial. The contrary expression in Application of Love, Okl.Cr., 349 P.2d 767 (1960), a case involving an alleged excessive appeal bond, was not necessary to the decision in that case, and, being in conflict with the authority cited above, is hereby overruled.
Because the Oklahoma Constitution does not govern the statutory right to bail on appeal, we must look to the provisions of the applicable statutes. The right to bail is set forth in 22 O.S. 1971, § 1077, supra, which treats bail on appeal in three contexts: Bail shall be allowed pending appeal of a misdemeanor conviction, or a felony where only a fine was imposed; bail shall not be allowed where the sentence was death or life imprisonment; in all other cases, which would include the case at bar, the right is discretionary with the trial court. Thus, it may be seen that the right to bail before trial and the right to bail during the pendency of an appeal in most felony cases are very different: the first being constitutional and subject only to the need for insuring the defendant's appearance; the second being statutory and committed to the discretion of the trial court.
The following cases from other jurisdictions construing discretionary appeal bond provisions lend support to the view that among the factors to be considered by the trial court is the potential danger to the community: In Re Podesto, 15 Cal.3d 921, 127 Cal.Rptr. 97, 544 P.2d 1297 (1976); Vincen v. Lazarus, 93 Idaho 145, 456 P.2d 789 (1969) and State v. Kerrigan, 98 Idaho 701, 571 P.2d 762 (1977); State ex rel Bretz v. Sheriff of Lewis and Clark County, 167 Mont. 363, 539 P.2d 1191 (1975) and State v. Bretz, 575 P.2d 44 (Mont.1978); and State v. Smith, 84 Wash.2d 498, 527 P.2d 674 (1974).
In In Re Podesto, supra, 544 P.2d at 1305 and 1306, the California Supreme Court, after holding that a state...
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