State Of Okla. v. Powell, 106,175.

• Decision Date: 11 May 2010
• Docket Number: No. 106,175.,106,175.
• Citation: 2010 OK 40,237 P.3d 779
• Parties: STATE of Oklahoma, Petitioner, v. Clyde POWELL, Respondent.
• Court: Oklahoma Supreme Court

237 P.3d 779

2010 OK 40

STATE of Oklahoma, Petitioner,

v.Clyde POWELL, Respondent.

No. 106,175.

Supreme Court of Oklahoma.

May 11, 2010.

ATTEMPTED APPEAL FROM ORDER OF DISTRICT COURT OF CRAIG COUNTY GRANTING HABEAS CORPUS

¶ 0 Respondent, committed to state psychiatric hospital after being found not guilty of murder by reason of insanity, successfully sought release from confinement by original proceeding in habeas corpus before the District Court of Craig County, Hon. James D. Goodpaster, District Judge. Upon State's request, the District Court certified its order for interlocutory appeal and State sought certiorari for its attempted appeal under 12 O.S.2001, § 952(b)(3); we find appeal does not lie from an order granting habeas corpus and we dismiss the attempted appeal for lack of jurisdiction.

ATTEMPTED APPEAL DISMISSED.

Gene Haynes, District Attorney, James W. Ely, Jr., Assistant District Attorney, Vinita, OK, Attorneys for Petitioner.

Cathy Stocker, District Attorney, John L. Scott, Assistant District Attorney, Enid, OK, Attorneys for Petitioner.

Winston H. Connor, II, Stockwell and Connor, Miami, OK, Attorney for Respondent.

EDMONDSON, C.J.

¶ 1 This is an attempted appeal by the State of Oklahoma from the judgment of the District Court of Craig County allowing a writ of habeas corpus. In 1990, Mr. Powell was committed by the District Court of Garfield County to the hospital for psychiatric treatment after he was found not guilty by reason of insanity of the murder of his mother. The writ ordered the release of Clyde Powell from the Oklahoma Forensic Center, formerly Eastern State Hospital, based on evidence that Mr. Powell is now sane. Because there is no appeal from an order granting habeas corpus, we dismiss it.

¶ 2 Under the Constitution and statutes of Oklahoma, the Supreme Court, Court of Criminal Appeals, all other appellate courts and the District Courts have concurrent original jurisdiction to hear and determine habeas corpus. Art. 7, §§ 4, 7, Oklahoma Constitution; 20 O.S.2001, § 41; 12 O.S.2001, §§ 1333-1355. See also Rules 1.190-1.194 of the Oklahoma Supreme Court Rules, 12 O.S. Ch. 15, App. 1, “Original Jurisdiction Proceedings Before the Supreme Court.”

¶ 3 The state's arguments to the contrary notwithstanding, there is no question that Mr. Powell had a right to bring this action in habeas corpus to seek his release from confinement. Title 12 O.S.2001, § 1331 provides that “Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when illegal.” Additionally, as an individual found to be insane and dangerous to the public peace and safety and consequently committed to the custody of the Department of Mental Health and Substance Abuse Services under 22 O.S.2001, § 1161, Mr. Powell's constitutionally and statutorily assured right to pursue his discharge by habeas corpus is also recognized in Title 43A of the Oklahoma Statutes. Section 1-108 of Title 43A provides: “Anyone in custody as a person in need of treatment ... pursuant to the provisions of this title, is entitled to a writ of habeas corpus.... Upon the return of such writ, the fact of his mental illness shall be inquired into and determined.”

¶ 4 It is well-settled in Oklahoma that the order of the district court in a habeas corpus proceeding is not subject to review on appeal. Since the beginning of the last century, this Court and the Court of Criminal Appeals have held that no appeal can be taken from a decision in habeas corpus discharging a petitioner restrained of his liberty. Wisener v. Burrell, 1911 OK 128, 28 Okla. 546, 118 P. 999; Parsons v. Childers, 1990 OK CR 16, 789 P.2d 243; Garrett v. Kerner, 1911 OK CR 253, 6 Okla.Crim. 47, 115 P. 1027; “The Oklahoma Courts have not wavered from this position.” Parsons, 789 P.2d at 244. Nor do appeals lie from orders in habeas corpus remanding a party to custody. Ex parte Kincade, 1944 OK 245, 194 Okla. 356, 151 P.2d 796; Ex Parte Logan, 1912 OK 29, 33 Okla. 659, 126 P. 800; Ex parte Johnson, 1908 OK CR 35, 1 Okla.Crim. 407, 98 P. 461; State v. Higgins, 1943 OK CR 50, 76 Okla.Crim. 321, 137 P.2d 273.

¶ 5 In Wisener, this court dismissed the appeal brought by a county sheriff from an order of the district court in habeas corpus discharging a prisoner held in custody for extradition. The court recognized that statutory authority and court decisions varied among the states, but held appeals from a decision in habeas corpus discharging a person from restraint do not lie in Oklahoma. The Wisener court cited Judge Doyle's discussion in Ex parte Johnson explaining that habeas corpus decisions were held not reviewable under general laws for appeal from all final judgments and noting that Oklahoma has no specific statutory provision for appeals in this class of cases. Judge Doyle concluded that if the legislature had intended to provide for appeals in habeas corpus, an appropriate provision would have been made in our statutes: “Its omission affords the best evidence to the contrary, and, if anything is wanting to remove all doubt, it will be found in the nature and object of this great writ as a constitutional right; its purpose being to afford a speedy remedy to a party ... without obstructing or delaying public justice, both of which objects would be defeated by the delays consequent upon an appeal. Any other rule would operate practically to subvert the constitutional safeguards and the fundamental rights of the citizen.” Wisener, 118 P. at 1000.

¶ 6 Wisener also set forth with approval the following reasoning of the Supreme Court of Utah in In re Clasby, 3 Utah 183, 1 P. 852 (1882):

[I]f the discharge of the applicant upon a writ of habeas corpus, before a court or judge having jurisdiction, is an order or judgment from which a appeal can be taken to this court, necessarily attended with unavoidable delay, the value of the great writ as a safeguard of person liberty is, at least, greatly impaired, if it is not changed into a means of oppression.

¶ 7 The Wisener court emphasized that Article II, Section 10 of the Oklahoma Constitution provides that “the privilege of the writ of habeas corpus shall never be suspended by the authorities of this State,” stating:

[O]ur Constitution on this subject is as broad as it may well be. Section 10 of article 2, commonly known as the “Bill of Rights,” provides in broad and comprehensive terms that “the privilege of the writ of habeas corpus shall never be suspended by the authorities of this state.” It is to be noted that the language of the Constitution is not merely that the writ of habeas corpus shall never be suspended, but it is the privilege of the writ which is never to be suspended. “Privilege,” according to Webster (Webster's New International Dictionary), means “special enjoyment of a good, or exemption from an evil or burden,” etc. “Suspended” is defined as “temporarily inactive or inoperative; held in abeyance.”

Undoubtedly courts, sheriffs, and other public officers of the state are authorities thereof, and if a party invoking the privilege of this writ may be reincarcerated by a sheriff, or other officer, on the order of a court or judge of the state, pending an appeal, then unquestionably his privilege under the operation of the writ would not only be suspended, but virtually destroyed and denied. So jealous have the people been of an opportunity being afforded every citizen for a speedy determination of the righteousness of his incarceration, that they have placed the power to adjudicate that question in every court of record and judge thereof in the state. Id., at 1001.

¶ 8 In Ex parte Logan, 1912 OK 29, 126 P. 800, we recognized that an appeal from an order in habeas corpus remanding a petitioner is not of final and conclusive character and consequently is not reviewable under general law allowing appeals from judgments. See, e.g., Wisener, 118 P. 999, Jamison v. Gilbert, 1913 OK 541, 38 Okla. 751, 135 P. 342-343. ¹ The denial of a petition for habeas corpus does not preclude a petitioner from filing another application for habeas corpus as the constitutional right of the writ is not exhausted by the first remanding order. Johnson, 98 P. 461, 462 (syllabus by the court). In Ex parte Kincade, 1944 OK 245, 194 Okla. 356, 151 P.2d 796, we dismissed petitioner's attempted appeal from the judgment of the district court of Craig County denying his application for a writ of habeas corpus for discharge from confinement at Eastern State Hospital and treated his filing as an original petition for writ of habeas corpus out of our Court.

¶ 9 The district court's order in habeas corpus releasing Mr. Powell is not capable of invoking our appellate cognizance and we dismiss this appeal for want of appellate jurisdiction. In view of our decision, we do not address the other questions raised by the state.

¶ 10 EDMONDSON, C.J., HARGRAVE, WATT, COLBERT, REIF, JJ., concur.

¶ 11 TAYLOR, V.C.J., OPALA, KAUGER, WINCHESTER, JJ., dissent.

TAYLOR, V.C.J., with whom OPALA and WINCHESTER, JJ. join, dissenting.

I dissent. The issue of the release of this criminal defendant should be fully reviewed and determined by the original sentencing court in Garfield County pursuant to Title 22, Oklahoma Statutes, Section 1161. I would grant the relief requested by the State of Oklahoma.

OPALA, J., with whom TAYLOR, V.C.J., KAUGER and WINCHESTER, JJ., join, dissenting

¶ 1 The court holds today that because an appeal does not lie from a writ of habeas corpus, the State's quest for review of a certified interlocutory order in a habeas corpus proceeding must be dismissed. I recede from the court's pronouncement. Wisener v. Burrell, 1911 OK 128, 28 Okla. 546, 118 P. 999, ¹ the case relied on by the court, may no longer be treated as entitled to precedential force. It is in plain discord with today's statutory regime of...