*1 1000
requisite
been taken.
demning authority.
must have
Art.
City,
Rueb v. Oklahoma
23,
Const.;
O.S.1991,
53,
Norman,
§§
§§
supra;
City
Okla.
Luccock v.
578 P.2d
of
(Okl.1978).
57;
Pipe
Company,
Allen v. Transok
Line
(Okl.1976).
lawful question is a of fact to
be determined from the attendant facts and developed by
circumstances the evidence. findings of the trial court on the issue of
necessity taking will not be disturbed Larry FIELDS, Director, appeal A. support where there is evidence to Oklahoma Williams, Corrections, findings. City such Tulsa v. of of
supra;
Petitioner,
McCrady v. Western Farmers Elec
Cooperative, supra;
tric
City
Luccock v.
v.
Norman, supra.
DRIESEL, Jr.,
The Honorable Willard L.
¶ 19 Under our
pro
constitutional
of the District Court
them,
visions and
interpreting
cases
the issue
County,
within and for McCurtain
proposed
taking
“public
whether
is for a
Oklahoma, Respondent.
use” is a
question. McCrady v.
No. P 96-817.
Cooperative,
Western Farmers Electric
su
pra; Arthur v. Board
Com’rs Choctaw
Court of
Appeals
Criminal
of Oklahoma.
County,
(Okl.1914);
43 Okl.
¶ necessity, 20 The expediency propriety exercising questions
eminent domain are general
public policy governed by and are statute. Com’rs.,
Arthur v. supra; Board Luccock Norman, City supra. A valid declara necessity tion of appropriate body
be viewed as conclusive courts fraud, showing
absence of a of actual bad
faith, or an abuse of discretion the con- *2 Application
filed an
Original
to Assume
Jur-
isdiction on Petition Writ
Prohibition
Stay
Comply
District Court Order to
Hearing
Conduct Show Cause
in the Su-
preme
April
Court of this
*3
Therein,
sought
prohibit
Petitioner
Re-
spondent
19, 1996,
enforcing
from
the March
ORDER LIFTING STAY AND
(1)
Comply.
Order to
Petitioner asserts
GRANTING WRIT OF
District
personal jurisdiction
Court has no
PROHIBITION
him
over
party
he was not a
proceeding
criminal
in Case Number CRF-
proceeding
arises from the criminal
(2)
96-5;
the District Court’s Order to Com-
conviction of Wilford Lawrence “Pete” Cher-
ply directing
prisoner
Petitioner to
remove
ry
Court,
County
McCurtain
District
Case
program
from a
by
is
law
authorized
is
Cherry pled
Number CRF-96-5.
guilty on
an
infringement by
unconstitutional
judi-
5,
February
1996 to
Delivery
Unlawful
of a
(3)
branch;
cial branch into the executive
and
Dangerous
(Cocaine),
Controlled
Substance
the District
Comply
Court’s Order to
to re-
O.S.1991, 2-401(B)(2),
in violation of 63
and
prisoner
move a
program
from a
authorized
was
sentenced to a term of
by law will result
orderly
chaos to the
Penitentiary
the Oklahoma State
for twelve
management of an already overburdened
(12)
(5)
years with
years
the last five
sus-
prison system.
pended. Cherry
transported
was
to the Lex-
4, 1996,
April
Supreme
On
ington
Reception
Assessment
Court
Center
(LARC)
granted
8,
stay
immediate
April
and received
1996,
(32)
show
hearing
cause
Thirty-two
later,
Corrections.
and directed the
days
stay to remain in
effect until
assigned
was
determination of
to the Electronic Moni-
original
(EMP),
action or until
toring Program
further order of
released
LARC,
the Court.
request
stay
for
placed
was
supervision
under the
denied
as to the
hearing set on
probation
the Petitioner’s
Corrections’
Objection to
Jurisdiction and
officer.
Motion to Dis-
miss filed in the
Respondent
District Court.
19, 1996,
On March
the Honorable Willard
response.
directed to file a
See Fields v.
Driesel,
L.
Judge,
District
issued an Order to
Driesel,
(Okl.
87,234
1996) (not
4,
No.
April
Comply
case,
in Cherry’s
ordering
criminal
publication).
for
Petitioner Fields to either furnish the Dis-
8,
hearing
April
At the
Respon-
on
trict
proof
Court with
was not
dent
denied
EMP,
Petitioner’s Motion for
assigned to
to take
into imme-
Court,
Dismissal in the
finding
him,
imprison
diate
per-
or to
proper
venue was
and declining to
sonally
address
appear
April
1996 and show
the issues of whether the District Court
had
cause
Petitioner should not be
personal
jurisdiction over Petitioner
contempt of
failing
court for
or refusing to
public
whether
parties
officials were
to a
comply
Judgment
with the
im-
and Sentence
prosecution.
criminal
posed by
the District
February
Court on
1996.
5, 1996,
July
Supreme
On
Court
Fields, through
Petitioner
counsels Vincent
declined to assume
and trans
Knight
Anderson,
L.
and Ronald
General
ferred the ease to this Court. See Fields v.
Driesel,
(Okl.
Counsel
87,234
and Assistant
5, 1996) (not
General Counsel for
No.
July
Corrections,
the Oklahoma
publication).1
jurisdictional
1. Determination
prisoner's
regarding
conflict be
tions
release from confine-
Supreme
tween the
are,
Court and this Court
ment are
question,
matters which
without
placed squarely
with the
Appeal's
within the Court of Criminal
exclusive
Const,
VII,
Oklahoma Constitution. Okla.
art.
appellate jurisdiction over criminal cases. These
4; State,
rel.,
Mahler,
Henry
ex
786 P.2d
are not administrative matters.” Id.
(Okl. 1990) "[Ijssues
concerning the determi
punishment
nation of the
ques-
amount of
any process
ful
law-
prohibition
disobedience
argues
a writ of
Petitioner
court;
made
fully
resistance
following reasons:
issued
granted for the
should
any
wilfully
person to
offered
the execu-
void
District Court
1.
Order
process
tion of
lawful order or
a court.”
prison-
to remove
the court order
O.S.1991, §
in-
565. The lawful order
Sepa-
violates the
Program
from the
er
Judgment
in this matter is the
volved
Doctrine;
of Powers
ration
Mr.
the criminal case of
Sentence entered
parties
officials
Cherry.
thus,
Dis-
prosecutions;
personal jurisdic-
Court lacks
trict
necessity
is no
asserts there
Fields;
Larry
tion over Director
party
that a
named
an action
contempt
indirect
used to
cannot be
3. A
action
rules
and asserts that
“normal
associated
challenge the
officials
acts
*4
parties
applicable.”
would not be
with
capaci-
in their official
acts carried out
Therefore, Respondent
the
claims
District
ty;
authority
its
to
had the
to issue
Order
only in
proper
is
Oklahoma
Venue
Comply directing
per-
Fields
Petitioner
to
of
County to contest
acts
appear
form certain acts
to
and show
opera-
management
in
and
the
officials
why
contempt.
in
should not be held
cause
he
assign-
including
prisons
the
tion of
to the Electronic
ment of inmates
agree with Petitioner that
We
Monitoring
Program;
personal
Court could not exercise
District
only ade-
of
is the
5. A-Writ
Prohibition
simply by
him
jurisdiction over
virtue of
remedy
Petitioner Fields.
quate
for
rendering
Judgment
a
and Sentence
of
has
prohibition,
language
For writ of
Petitioner
against
a criminal defendant.
“(1)
court,
establishing that
in
imposed
of
Judgment
burden
Sentence
Court,
County
is about to exercise
officer or
has or
Case
McCurtain
(2)
power;
CRF-96-5,
the exer-
judicial
quasi-judicial
De
does not direct the
Number
law;
power
perform any
is unauthorized
act
partment
cise
said
Corrections to
(3)
result
said
will
carry
Judgment
the exercise of
to
Sentence.
adequate
no
injury
places
in
for which there is
other
the de
Judgment and Sentence
10.6(A),
O.S.Supp.1996,
Rule
remedy.”
“custody and control” of
fendant in the
18, App.,
compliance
the Court Criminal
in
Ch.
Rules
of Corrections
that Petitioner
Appeals.
provisions
We are satisfied
extraordinary
prohibiting
to an
writ
was
entitled
521. Because
is unau-
Respondent
doing
an act which
of Cor
for incarceration
assert
Respondent
rections,
county
law.
cannot
direct
thorized
the Sheriff
Depart-
jurisdiction over the Director of the
to the LARC and
the defendant
ed
deliver
proceeding
copy
Judgment
in a criminal
and Sen
ment of Corrections
leave
party
authority”
not a named
to which the Director was
as warrant and
tence “to serve
to hold Petitioner
Respondent’s
effort
of the defendant.
contempt”
official
challenge
his
“indirect
punish
of the
Every exercise
Director
discretionary
performed
acts
is, however,
violation of
of Corrections violates
qualification,
subject
important
one
separa-
doctrine of
Oklahoma constitutional
namely,
absolutely essential that
it is
powers.
tion of
should have acted
making
court
the order
limits,
jurisdictional
directly
other-
ease,
attempted within
has
In this
of such
contempt of court
wise the disobedience
hold Petitioner
indirect
juris-
contempt.
In
absence of
no
acts.
perform
“fails”
certain
if Petitioner
nullity ...
judgment is a
as “wil-
diction the
contempt
court is defined
Indirect
Court,
ter,
question regarding
transferring
but rather involves
By
this case
this
prisoner’s
from confinement.
Court of this State
determined
release
mat-
an administrative
does
involve
case
(Okl.
Driggs,
parte
proceeding may
Ex
325 P.2d
75-76
ties to a
not be
1958). Generally,
jurisdiction
contempt,”
a trial court’s
but determined that “corrections
jurisdiction
parties
over the
based
officials are officers of the
court
jurisdiction
general
purpose
of taking custody
prison-
mat
limited
Anderson,
ter.
In re
e.g.,
See
P.2d
ers as directed
the mittimus.”
Id. at
(Okl.Cr.1990);
Page,
Scobie v.
1336. The
question
P.2d
mittimus orders in
re-
(Okl.Cr.1964).
quired
prisoners
accepted
to “be
into
custody,” and to the extent that officials re-
21 of
Section 565 of Title
the Okla
accept prisoners
they
fused to
when
had the
Statutes,
homa
contempt
defines
order,
ability
obey
they
could be held
court,
process
“the
requires
order or
dis
contempt.
at
Id.
1336-1337.
obeyed
lawful.
The lawfulness of the
order is determined
whether
Lockhart,
Relying upon
argues
Petitioner
had
to so act.”
Whillock Whil
any jurisdiction
might
the District Court
lock,
(Okl.1976).
Here,
550 P.2d
have is limited to enforcement
“mitti-
Comply directing
District Court’s Order to
Judgment
mus” of the
and Sentence. Peti-
perform
Petitioner to
certain acts or to show
maintains, however,
tioner
juris-
that limited
cause
he should not be held
indirect
Oklahoma,
diction is not available in
order,
court is not
a valid
be
corrections
are
officials
not the officers who
juris
cause the District Court
not have
did
act in
Judgment
directed to
*5
by
simply
diction over Petitioner
virtue of its Sentence.
Judgment
issuance of a
and Sentence in a
Respondent argues
Judgment
that the
argues,
criminal matter. As Petitioner
the
Sentence is “more than a mittimus” and De-
language
a Judgment
and Sentence does
partment of Corrections
are
officials
“com-
Department
not make the
of Corrections a
pelled
carry
the
orders of the Court.”
party
proceeding.
Judg
the
The
O.S.1991, §
22
Title
982a
allow
does
the
ment
requires
and Sentence
the sheriff
modify
District Court to
within
sentence
to deliver the defendant to LARC and leave
(120)
twenty
one
days
hundred
after the
imprisonment
him there for
set
as
out in 57
imposed
sentence is
probation
after
§
O.S.Supp.1996,
530.
compares
Petitioner
revoked. While this statute allows the Dis-
People Lockhart,
his case to
The Colorado require Court noted that of Corrections to “[generally, state officials par- actually Colorado, who prisoners. receive Unlike law, presumed it will be duty proposed to re- measure as Department of Corrections’ Judg- prisoners not from the a valid enactment. Id. stems
ceive mittimus, rather but ment and Sentence O.S.1991, Legislature, The Oklahoma at 57 Department of state statute. Once (the seq. Act 501 et Oklahoma Corrections LARC, Corrections, through its officials at 1967), Department of granted Cor- Depart- prisoner custody, receive oper- rections the sole and exclusive Judg- charge under the ment has fulfilled prisons. provides ate the state Act District issued ment Sentence forth appointment of Director and sets Court.2 powers e.g. duties of that See Director. O.S.1991, 510; §§ case, O.S.Supp. 507 and refuse In Petitioner did not 510, The Di- §§ 510.9 and 510.10. inmate LARC. as new at receive specifically assign- include the that rector’s duties pleadings demonstrate inmate, new from EMP processed prisoners as a ment of to and received Therefore, may prisoners we that as- law. find determination which required might solely have within signed program the District Court to that rests Judg virtue of the Depart- over Petitioner of the Director of the had discretion and Sentence issued defendant Cher ment ment of See Corrections.
ry’s limited ended when Peti ease was 510.9. completed obligation his under
tioner long recognized for a time custody into at by receiving place of confinement is an LARC. matter and not a act. administrative
Secondly,
we find
e.g.,
Hampton,
Parte
Okl.Cr.
See
Ex
per
attempt
(1948);
Hunt,
to order Petitioner to
Court’s
Ex Parte
P.2d
discretionary
purely
(1950).
act
violative
form a
inmates to the EMP violates
to the
the inmate
Swart,
held, in
powers
processed through
In
we
LARC.
“The
of
doctrine.
must
part,
that
Offender Act
of the
the Intermediate
vio- Director
of Corrections
separation
eligi-
selecting
of
of
shall exercise his discretion in
lated
doctrine
placed
assignment
it
within the hands of the
ble inmates for
to the Electronic
power
Monitoring Program
O.S.Supp.1996,
of
es-
Corrections the
...”
57
510.9(B).
probation.
§
rules
of
tablish the
and conditions
it
authority
We said that was within the
legislative
persons
intent
as-
imposing suspended
“court
sentence to
signed
program
“custody”
to this
are in
governing
forth
set
the terms
conditions
evident.
suspension” and, “the
such
Court cannot del-
510.9(C)-(F)
e.g.
O.S.Supp.1996, §§
See
egate
responsibility
to state the terms and
monitoring
and 510.10. “The electronic
of an
1271-1272;
suspension.”
conditions of
Id. at
pursuant
inmate
to this section shall (Okl.Cr.
354, 356,
Collyar,
re
In
476 P.2d
supervision required by
addition to active
law
1970).
short,
power
In
we held that the
security
shall
be considered
level
suspended
state the terms
sentence rest-
confinement for the
within
inmate
solely
judicial
ed
within the
branch.
assigned
program.”
O.S.Supp.1996,
assigned
510.10. Like
inmates
the Pre-
case,
In this
we
do
have
paróle
Supervision Program,
Conditional
situation where an inmate
been
“dis
escapes from
inmate “who
the Electronic
charged
pardoned
from lawful
sentence”
Program
Monitoring
shall be
paroled.
Petitioner acted
his discre
provisions
Section 443 of
tion,
Title
authority
vested
him
statute,
Oklahoma
Statutes.”
placing
defendant
510.9(E).
discretionary
EMP. The exercise
any power
does not violate
vested
has,
once,
recog
more than
judicial
Conversely,
we
branch.
find that
management
running
nized
attempt
Court’s
to hold Petition
prisons is a function
executive branch
performance
er
indirect
aof
e.g.
government.
Mayfield
See
v. Page,
statutorily
discretionary
an
authorized
act is
(Okl.Cr.1965);
Page,
In Barnett 852 P.2d 163 P.2d incarcera (Okl.Cr.1993), placement we said tion of a convict is one administration for *7 in Preparóle Supervi- inmate the Conditional an arm of the executive branch of gov the (PPCS) ernment.”) Program equivalent sion was not the parole of and noted that the inmate in PPCS similar, identical, addressing In but not custody Department remains in of the the of situations, in courts other states have arrived only “degree” Corrections and of his Adamek, at the same In result. v. 907 White by being placed confinement in was affected (Colo.Ct.App.1995), P.2d 735 a where District PPCS, in the PPCS. An inmate viola- contempt against Court a entered order probation,
tion of the rules and conditions of Director of the Colorado of Division Youth subject Department of Corrections dis- violating Services for the trial court’s sen- ciplinary proceedings. Id. An inmate who tencing placement regarding peti- of a “escapes” subject from PPCS tioner, Appeals the Colorado of Court held charges O.S.1991, § 21 57 under of was void on two 365(F). O.S.Supp.1996, § First, grounds. the trial court’s order that a Similarly, of placement placed an inmate in the defendant sentenced as adult be in equivalent EMP is not of Department of dis- Institutions exceeded the charge statute, Second, By from lawful it jurisdiction. a sentence. trial court’s program provisions is a “for in of custody sentencing inmates Colorado’s for adult Department felony provided of ...” 57 Corrections offenders 510.9(A). appropriate Before an in “an facility inmate confinement
1007 Department as to of the Executive what director over by the executive determined Corrections,” period of a confinement of constitutes service of the doctrine nullity a and constitute an exercise prohibited court from would be separation powers a granted exclusively the Execu- power exercising powers in a manner its inherent tive.”) agency preempt an executive that would powers properly within its “exercising from Jeremy, 419 In Care and Protection of 738. The Court of sphere.” own Id. at (1995), 1029 a district Mass. 646 N.E.2d authority to
Appeals held determine Department of judge required the So court setting felony offenders appropriate adult place temporary cial a child Services di- was vested statute executive custody specific type placement. into a Corrections, Department of rector of the Supreme appeal, On Judicial Court of Therefore, judiciary. than the rather “[Wjhere said, the means of Massachusetts placement order exceeded trial court’s duty carrying statutory is within the powers. Id. court’s inherent scope of the official, public of the courts nor discretion (Colo. mally will direct official Hufnagel, v. 729 370 not how In Kort P.2d statutory duty.” 1986), Id. at of Colorado held a should exercise (brackets original). to act authority not have the District Court did person properly best interests of prohibiting transfer de issue an order within the of the court does not fendant deciding questions committed any setting other than maxi extend Institutions to a public official. security setting within the Colorado law determination mum Charrier, Id; also v. 416 Mass. Hospital. an order violates see Charrier “[S]uch State (1993). separation and was 616 N.E.2d constitutional jurisdiction.” matter without issued It is clear that the Oklahoma Id. at 371. operate the place intended prisons its inmates in the Beauchamp, N.J.Super. and to incarcerate In Department of Corrections. hands of the (App.Div.1993), defen- A.2d placed upon Legislature specifically burglary contempt. The was convicted of dant order, sentencing judge shoulders of the part As responsibility administering parole. appeal, the additional included On conditions including Jersey programs, that the alternative incarceration Superior Court of New O.S.Supp.1996, 510.4. We authority impose EMP. See 57 court no condi- trial had frustration of empathize and understand the parole and “once a trial court tions of said Judgment judges this State who enter judg- trial pronounced entered Sentences, findings guilt conviction, arising relinquishes jurisdiction it ment of State, with the statutes of branch.” accordance over the to the' executive matter be given who assume due deference Id. at 519. especially This is true to those sentences. State, Ga.App. In Davis v. this case where the (1987), sen- S.E.2d trial probation also included a considered but Driving upon a convicted of tence defendant *8 imposed. component in the sentence provided he the Influence which that Under concept accountability is good no time credits until all fines When the receive official, act of a Appeals by an or acts paid. The Court of held the thwarted were of this people it of the impose to the confidence trial court not have the dilutes did naturally restriction, system justice. statutory in our One noting that the such a deficien- action to correct those directly related wants to take provisions good for time stewardship entity or administration, by an af- in lack of to sentence cies the duties of in the execution firmatively delegated by legislature to individual and.fulfillment role. Such ac- assigned governmental Id. 353 the the custodians the inmates. State, however, tion, must taken in accordance 7-8; at Johns v. S.E.2d see also (1981) statutes, law, the Constitu- and Ga.App. 287 S.E.2d The issue of truth of this State. (“[a]ny attempt by impose a court to will tion sentencing to ed proceeding against ensure sentenced from further Petition- actually imposed Court, must serve County er in McCurtain District Case must determined be addressed and the Number CRF-96-5. legislative branch. It is incumbent IT IS ORDERED. SO legislative and executive branches work Gary Lumpkin L. provide together citizens of Oklahoma LUMPKIN, Judge GARY L. system
with a which is corrections truthful James F. Lane public. and accountable to the LANE, Judge JAMES F. II, Article of the Okla Section Charles A. Johnson provides political homa “All Constitution that JOHNSON, CHARLES A. people; govern is inherent in the and Judge protection, ment is instituted for their secu benefit, rity, promote gen their CHAPEL, P.J., STRUBHAR, V.P.J., welfare; eral ...” While cost is factor dissent. which in formulating pol must considered icy govern which seeks to fulfill this role CHAPEL, Judge, Presiding dissenting: ment, it cannot be the consideration. Cherry L. Wilford “Pete” sold cocaine out To their sys restore faith in the corrections pled guilty his home and as a result tem, right the citizens have inherent 5, 1996, delivery drugs February on require legislative and executive branch County, District Court of McCurtain Okla- government forge es of poli a corrections homa. District Judge Willard L. Driesel cy provide which accountability will for indi Cherry years sentenced to twelve with five crimes, viduals convicted of years suspended. Cherry was transferred to appropriate punishments ensure which have custody Oklahoma service, certainty once February [D.O.C.] judicial The courts. branch is tasked with later, Thirty-two days the D.O.C. released responsibility interpreting policy custody and sent him home statutory enacted into our structure and 510.9, provid- to 57 O.S. statute ensuring those conform state statutes ing for electronic monitoring of inmates. requirements. ju federal constitutional placed supervision also under the diciary cannot subvert otherwise constitu probation D.O.C. officer. statutory provisions tional merely because a judge judges disagree policy with the Driesel, upon hearing Cherry’s properly which has been formulated. prison DOC, release from issued an requiring
Therefore, the Director of the D.O.C. we Application find immediately take into D.O.C. Writ granted. of Prohibition should be imprison appear him or Court, and show cause having jurisdic- while limited contempt. he should not be tion over Petitioner to the extent Peti- Director of request- D.O.C. filed this required action tioner is to receive an inmate into ing prohibit Judge this Court to Driesel from custody, does not have to hold enforcing his order. The case before us Petitioner in indirect in this crimi- presents many procedural problems: Further, who is proceeding. nal the District proper served, party, was he does venue attempt, through Court’s citation indi- lie in County. McCurtain These and several contempt, challenge rect per- Petitioner’s interesting, procedural other complex prob- discretionary formance aof act is a violation plague lems this importance case. The government pow- branch matter, however, convinces me we ers solely vested in the executive branch. *9 procedural prob- should overlook the formal THEREFORE THE IT IS ORDER OF lems and decide the substantive issue this stay THIS that proceedings COURT is case on the merits. hereby Appli- LIFTED and the Petitioner’s cation hereby for Writ of may Prohibition is The substantive issue this ease be Respondent prohibit- GRANTED. hereby govern- stated as follows: Which branch of or, in a case sentence of the court has the con- State of Oklahoma ment authority length alternatively, the constitutional to authority to determine stitutional commutations, upon paroles be grant reprieves, incarcerated1 person time a shall crime?2 provided the Okla- pardons specifically conviction as homa Constitution.4 Constitution divides The Oklahoma separate government into three powers of judgment sentence a Imposing branches, Legislative, departments of the courts. criminal ease is the business Judicial, Executive, provides and further Legislature nor the Executive Neither the powers belong- no shall exercise branch authority change judicial- to a branch has powers, separation ing to another.3 sentence, by reprieve, ly imposed except system of cheeks and bal- its inherent with commutation, parole pardon specifically as ances, from similar was drawn a division provided by our The Execu- Constitution. in the States Constitution. United authority branch has clear constitutional tive of conviction and sen- Entering judgment a paroles to to grant pardons and quintessential case a in a criminal tence VI, Con- Article Section 10 of the Oklahoma And, if court has the au- judicial power. a stitution, go beyond that authori- but cannot judgment it must thority enter a valid to may ty. Legislature change The of course judgment. authority to enforce that have type punishment im- length or power to judiciary not have the If the does crime, may not alter the posed any but hardly judgments then it can its enforce is im- length of a sentence after sentence co-equal government. to branch said posed specific in a case. As Indeed, judgments, it cannot if enforce authority length of Cher- no to alter the has judiciary becomes hollow branch. sentence, ry’s it cannot dele- validly Clearly, Legislative branch has exclu- the Executive branch. gate authority to determining authority pass to what laws sive authority no to Thus the D.O.C. had lawful in Oklahoma es- constitute crimes shall Cherry’s release. The penalties for crimes. tablishing such trial court sentenced The authority try to has exclusive Judicial branch Cherry years years with five sus- twelve with crimes and enter charged individuals pended. The D.O.C. released upon of such judgment and trial sentences only days prison after The branch has exclu- charges. Executive Monitoring assigned him to the Electronic cany judgment sive out long any have idea how developed to Executive of the State have been avoid 1. Several fictions Thus, specific facing argued that an issue. it is sentenced this convicted and by D.O.C. on electronic monitor- years inmate released term of serve Oklahoma. ing "pre-parole” is in "constructive custo- or on thing Oklahoma is its certain about a sentence in is, however, plain dy.” fact that if an inmate And, uncertainty. permit to con- we cannot custody. do prison, is not in I is not in he uncertainty negative effects of such tinue. The subject dispute the fact that an inmate who is justice system are immeasurable. the criminal on monitoring, super- or who is electronic sys- very little confidence has officer, by probation significant re- has vision by jurors routinely be seen who tem can Notwithstanding liberty. strictions his impose in thousands of sentences measured restrictions, however, an inmate is not such such year years. They does not mean a know that custody. continually send notes to the year. also Jurors asking judges if a sen- during deliberations trial surrounding this issue led 2. Confusion really parole what it means tence life without present, problems in At no serious Oklahoma. judges says. trial We refuse to even allow what means. The case one sentence knows Thus, questions. example. judge there is no doubt perfect A sen- answer such before us is years years people my twelve five death row be- tenced we have mind suspended. A Mars who under- jurors visitor from confidence that a life with- cause have no undoubtedly, English would conclude parole. stands means life without years. prison be in for seven In- would stead, days Const, and directed he was released after IV, § 1. art. 3. Okla. very go he had home from which back selling drugs. been convicted of Const, VI, § art. 4. Okla. defendant, Judge, prosecutor, de- Neither victim, legislature lawyer, jury, or Chief fense *10 Program to a law which allows the invalid remand this matter to the Dis- proceedings. to from trict D.O.C. release inmates incarceration further met, despite if certain are conditions imposed by STRUBHAR,
terms
the sentence
the trial
Presiding Judge,
Vice
majority’s
court. The
discussion focuses on
dissenting:
in
attempted
cases which courts have
to im-
majority
upset
Because the
to
'seeks
pose
specific
on the Executive branch
condi-
power
balance of
between the three branches
confining prisoners.
tions for
That is not the
government
relinquish
judiciary’s
merely
situation
The trial court
im-
here.
authority to sentence convicted
to
individuals
posed a
years,
to
sentence
term
imprisonment, I must dissent. After Wilford
through the
This is well with-
served
D.O.C.
Cherry
L.
plea
guilty
“Pete”
entered a
fact,
powers
trial court’s
trial
—in
home,
selling cocaine out of his
the District
only entity
court is the
which could sentence
Cherry
years
Court sentenced
to twelve
im-
Cherry.
Cherry’s
“condition” of
prisonment
years suspended.
with five
Thir-
he
was that
be confined in D.O.C.
ty-two days
after
arrived at
Lex-
custody.
attempted
The trial court
to ensure
ington
Reception
Assessment and
Center to
this sentence was carried out. This
sentence,
serve his
he was returned to his
action does
power
not encroach on
vest-
home
under
of Corrections’
ed in the
Judge
Executive branch.
Driesel
Monitoring Program.
Electronic
imposed specific requirements
neither
on the
Cherry’s
When
Dreisel learned of
Cherry’s
manner in which
sentence was to be
prison,
release
he ordered the Director
served,
attempted
prevent
nor
to
the D.O.C.
proof
Corrections to furnish
commutation,
from carrying
reprieve,
out a
was
currently assigned
not
to
Electronic
pardon.
surely
or
A trial court
Monitoring Program
immediately
to
com-
or
validly imposed
to enforce a
court
ply
judgment
with the
and sentence of the
order.
returning
prison facility
to a
Clearly,
early
release laws enacted
to show cause
should not
Director
legislature
good
responses
were
faith
to
contempt
indirect
of court for
overcrowding problems
pris-
our state
failing
comply
sentencing
with the
order.
attempts
Similarly,
implement
ons.
majority
concludes that
the District
these laws
D.O.C.
the Governor
Court lacked
over
Director of
in good
have been
faith.
absolutely
There is
of Corrections because he
no evidence that either of the other branches
party
pro-
not a named
in the criminal
government
attempting
seize
tread
that,
ceeding.
Is it to be contended
where
powers
judicia-
and functions of the
precise
the law
terms directs District
However,
ry.
notwithstanding
good
faith
Courts to sentence convicted individuals to
and the Executive branch-
imprisonment,
incapable
the law is
of secur-
es, the net
establishing pre-
result of laws
Further,
ing obedience to its mandate?1
paróle,
monitoring,
electronic
and other such
it to be
contended
the heads or directors
programs
effectively negate
is to
sentences
departments
amenable to the law
by juries
recommended
contempt
this State? Because the indirect
court order. Such statutes also violate the
parties
statute is not
limited
named
Executive’s
powers
exclusive constitutional
applies
“any person,”
but rather
I
commutations,
grant reprieves,
paroles and
juris-
would find that the District Court had
pardons.
is,
Any
in my judgment,
such law
O.S.1991,§
diction. 21
separa-
unconstitutional and a violation of the
provided by
TV,
tion of
majority
Article
also concludes that the Dis-
Section
of the Oklahoma Constitution.
I
trict Court’s efforts to
hold
Director of
therefore, accept jurisdiction
would
of Corrections
indirect
matter,
510.9,
declare
challenge
his official
disputed
O.S.1991,
1. It
Cherry
401(B)(2).
imprisonment.
cannot be
that the District Court
2-
sentencing
had the
to enter a valid order
*11
running
system
the court
as the
doc-
the idea of
constitutional
violates the Oklahoma
acts
recently
my
has
done. Harris v.
powers.
It is
belief Tenth Circuit
separation of
trine of
(10th Cir.1991),
Champion,
has entered a valid enforceable facility. prison in a Neither
ing confinement Legislature nor the Executive branch has modify judicially imposed authority to the court’s order confers
sentence unless committing
authority by the convicted indi- alternative
vidual De- programs instituted
confinement partment. CARRIERS, AGGRESSIVE INC., Appellant,
JOHNSON, special concurring: Judge, During truly This is a case of frustration. everyone in you tell that argument oral could TRI-STATE MOTOR TRANSIT you
the courtroom was frustrated. When COMPANY, Appellee. dissents, it is this and the two read Order of this easy to see that all the members No. 86611. problem frustrated. The has do Court are and, overcrowding prison system our frankly, Legislature appropriat- quite Oklahoma, Appeals Civil provide incar- ing funds to for the sufficient No. 4. Division judicial system ceration giving juries of this State are Feb. 1997. defendants. Rehearing March Denied record specially go I concur herein but Judge agreeing with both the dissents of 3, 1997. Denied June Certiorari many Chapel Judge Strubhar re pending legislation that spects. There is
may foreseeable future solve at least particular problem. Legislature
this have ad the Executive branches should they to see if cannot cure
ditional time parties, especially the
frustration of all the Chapel correct
jurors Judge of this State. has he notes that the branch
when try and to individuals
the exclusive appro after judgments and sentences
enter Court of the State
priate trial. has agreed that this Court
of Oklahoma Therefore,
jurisdiction over these matters. the Execu
in the event the may problem, the Court
tive do not solve problem for step in and solve the
have does not relish
those branches.