Roselle v. State

apparent it is has been de- defendant

рrived rights, of no fundamental this Court authority sup- for books search

port their assertion that trial court has Bryant

erred. and sentence is ac-

907. The

cordingly affirmed.

BRETT, J., concurs. ROSELLE,

Joe Appellant, L. Oklahoma, Appellee.

The STATE of

No. A-17319. Appeals Criminal of Oklahoma. 28, 1972.

Nov. Secor, City, appel-

Guy lant. Atty. -Gen., Derryberry, Yvonne

Larry Gen., appellee. Atty. Sparger, Asst. (No answer) “BY MR. ROSELLE: OPINION MEMORANDUM your Does clock “BY THE COURT: BUSSEY, Presiding Judge: ? now it to be 9:15 show District Appellant the was convicted My clock shows “BY MR. ROSELLE: of County, of Cleveland Court your that clock it to be I am sure 9:10. summary pro- Contempt in of the crime is correct. day September of ceedings on the 20th Roselle, Elvin when Judge Mr. before District Court “BY THE COURT: 9:00, the punishment expect Brown, Appellant’s at we who fixed have cases set Only ($100.- present. parties to be lawyers a fine of One Hundred Dollars and at is planning Poor excuses. an act God of 00). at are set cases Our not defensible. purported This must be dis you in con- 9:00, finds the Court and under the rules of this Court for missed aat punishment your fixed tempt and First, original record re two reasons. the fine of $100.” no formal and sentence flects fatal fur- jurisdictionally filed in Minute signed Bench Brown’s Judge Baker 496 P. omission. that: the statement ther reflects 2d 1195 if he had Court being the asked “On ques- grows The second reason out of a pun- not be why he should cause to show impression of first state of tion if that contempt, he answered ished for Oklahoma; that is whether way, put it that going to was the Court felony, be classed as misdemeanor or a of guilty found He was guessed he not. Attorney was question raised non-acci- voluntarily and contempt for Motion to and the subse- Dismiss General’s adminis- interferring with dentally response Appel- to the motion quent appear by neglecting justice tration of lant. delaying and hour, thus published at the witnesses, litigants, at- hindering jurors, Appellant record that The reflects pun- His personnel. attorney torneys Court record for one Leona T. at a fine CRF-71-420, was fixed $100.” Miller Case No. set on the ishment County Cleveland District Court docket reaching the merits Without question at 9:00 a. m. on the date in supports the record question whether before Associate District David J. contempt, we direct criminal finding of Rambo. The court Minute reflects a six- held that has thаt this Court observe ty-six (66) jury panel member was asked crimi a crime and is Appellant appeared to wait and that the pub against the contempt is an offense nal 9:15 a. m. The record also reflects the directed is society conduct lic or Appellant was then taken before authority dignity and against any Brown asked he had excuse if obstruc acting judicially, aor court late, being asked whether was also justice administration tive it the first time an not was he had made state. majesty to the disrespectful Appellant appearance in that The court. 427, 209 Stephenson, 89 Okl.Cr. parte Ex “No,” replied, then was asked: Roselle, Mr. THE “BY COURT: and conclu- statutory construction The why you known to there reason Attorney General by the advanced sion contempt? you should not hold per- Dismiss Motion the State’s Well, don’t I “BY ROSELLE: MR. con- agree with suasive, although we way— it that wants know. If ais criminal clusion note that interesting to It is you misdemeanor. THE I consider that “BY COURT: put motion response to the Appellant’s willfully disobeyed the order of arguing that position of him Court. which he stands convicted is Inasmuch crime of as the Oklahoma crime, say, fel- impose statutory did not higher grade see fit to mini- misdemeanor, ony rather than a but we mum or maximum on for con- reasoning tempt, his but left wholly unаble to either the matter to the judge, conclusion. discretion of the trial and since may there be others the view of who share punish The fixed the Appellant contempt the here that criminal ment contempt as follows: “Punish felony, should treated a be as we feel cer- contempt ment for shall be or im fine guidelines tain point are order at this to both, prisonment, at the discretion forestall notion that will this Court en- the court.” 21 566. Neither summary proceedings dorse out-of-hand punishment statutory the section nor the contempt for direct criminal in all cases. definition of found 21 O.S. 1971, specifies Basically, adopt 565 whethеr or not con the view ex tempt pressed by is a felony or misdemeanor. Nor United States statute, does the Court in section this Cheff v. 384 U.S. felonies, as is in specify (1966), the case most 86 16 S.Ct. L.Ed.2d 629 imprisonment rejected be wherein that pen shall in the state the view that itentiary, clearly felony prison six-month term for criminal situa con Therefore, tempt jury tion. we must warranted a define term trial. Since that time, “imprisonment.” high adopted This Court Court has not seen fit to reasoning early move the line point of an from the case six-month in Carr State, sofar as Okl.Cr., distinguishing (1961), “petty P.2d 606 between wherein the Court serious” stated: offenses and reinforce their ‘“ Cheff, * * * Illinois, decision in Bloom v. “imprisonment”, word 391 U.S. 88 S.Ct. 20 L.Ed.2d 522 sense, its ordinary contemplates and Therefore, adopt this Court would means without the jail, common rather ” position that in a case of direct crimi than the penitentiary.’ nal contempt which is to be handled upon Based the foregoing where the word summary fashion the court should it be “imprisonment” more, is used without apparent come punish evident or that the say, an indication in the statute that imposed ment to be will exceed a term of imprisonment place is to take county ‍‌​​​​​‌​​​‌​‌​​​‌​‌‌‌​‌​​‌‌‌​‌​​​‌‌​​​‌​​​​‌​​​‌‍six months in jail, absent an in state penitentiary or that it is be for a telligent and waiver, informed the defend pеriod year of time in excess of one ant will be jury entitled to a trial. that the crime is defined in the statute as is, therefore, It the order of this Court felony, that place imprisonment be, purported appeal herein be county jail therefore, we con- hereby, the same is dismissed. clude that the crime Contempt is a mis- demeanor. BRETT, J., dissents.

Having concluded that Contempt is SIMMS, offense, specially (assigned), misdemeanor concurs. we are then within J. the Court’s regard rules with to the com BRETT, Judge (dissenting). puting of They time. require peti that the tion in error and accompanying compelled specifically I am documents dissent be filеd days within September of the date of this decision. On this judgment. In this by Appellant’s Court dismissed the from a own pleadings wherein he states he citation in Robinson v. pick did up the transcripts Okl.Cr., until 165 for similar reasons days after the judgment sentence, explaining without what is meant purported appeal is more judgment than a out month “formаl and sentence” in direct of time and must be contempt proceedings. dismissed. So far as I know. State, Okl., printed there is no form in the nature of a cision in Fulreader v. judgment (1965), following formal sentence for direct which the was re- contempt proceedings. cited : The text writers “judgments refer to and “or- or sentencеs” by prior “The law well settled deci- committment”;

ders for and the cases proceedings sions of this Court that considered, which this Court has in which are neither civil nor reported, and sentence was generis criminal in character but are sui indicate statement based, facts which the citation was proceedings The in the instant matter finding, imposed by and the sentence very similar to those found Fulread Consequently, I do not consider court. Also, subsequent er. to the State, supra, is in Baker v. the rule stated Fulreader, Court’s decision in this Court “special pro- necessarily applicable in these approval recited with the sаme rule of “sui ceedings”. State, Okl.Cr., generis” in v. Sullivan State, (1966); P.2d 559 and Pate v. provides: Okl. While Cr., (1967). 429 P.2d 542 It follows there person imprisoned shall be “Whenever a fore, proceedings if the are neither “civil contempt the substance of the offense character”, pun criminal in nor then the shall be set forth in the order for his con- ishment therefor should not be classified ‍‌​​​​​‌​​​‌​‌​​​‌​‌‌‌​‌​​‌‌‌​‌​​​‌‌​​​‌​​​​‌​​​‌‍as in finement, and made a matter of record being court.”, ap- “felony” either “misdemeanor” or in has been the same statute plied proceedings character. contempt in direct when only imposed. Young a fine was See: Prior in to this Court’s decisions Sulli- 275 P.2d 358 State, State, supra, van v. and Pate v. su- pra, the different classification of direct matter, In the instant the court minute existed; contempt proceedings but since was filed of record and it sets forth the rendered, those decisions were both Courts substance of the facts which as the served contempt ap- have considеred that a direct citation, opportunity basis for the an peal Supreme could be taken to either the explain, finding contemnor to Court, majority or to this Court. The de- guilty, and judgment of a fine. $100 appears cision this case to be rever- Also, that court minute was filed in the sion, pre-existing back to the cоndition of Judge’s handwriting. Trial Honorable own confusion, to which I do not subscribe. my way thinking, To this constitutes a Rev. for a dis- See: Okl.Law judgment upon and sentence citation for aspect cussion on this court; direct contempt and is a “formal proceedings. judgment addition, sentence”. Lastly, discussion with ref- I believe the chеck with the Court Clerk for the District supra, erence to Cheff v. County Court of Cleveland reveals that no unnecessary for the reason direct con- printed, typed, other or other form of or- disposed tempt proceedings summarily are der has been included the file in that requirement jury. for a of, and there is no C-71-524, case number other than court’s to, “Judges Trial Notes” referred to this decision. respectfully I dissent September 21, dated doubt 1971. No considers that to be sufficient concurring): SIMMS, Judge (specially support pro- and sentence to concurrence to must add our feel we We ceedings, prepared or he wоuld have by Judge result reached the decision and more formal order. por- agree with that Bussey and while we Judge Brett’s dissent indicates Secondly, majority prem- tion of decision is appears a rever- majority opinion to be ised this Court’s 1948 decision in Ex sion, respectfully observe parte Stephenson, supra, and fails to rec- in order to necessary ognize such a reversion the Oklahoma Court’s de- Fourth, preserve sem- reading Fulreader, follow the law and some a close su- pra, appellate process. of order in concerning blance our sui generis portion opinion, per curiam decision strongly disagree We portion with that Court, reveals that Fulreader, holding which portion opinion grounded entirely proposition proceedings stands for the upon three decisions: for direct stii generis, that is criminal, neither civil nor for several rea- Evans, Best v. 297 P.2d 379 (Okl.1956); sons. State, Brown v. 178 Okl. 62 P.2d 1208 First, historically, contempts and, ; Owens, Dancy (1936) 126 Okl. been treated as “criminal” in Oklahoma’s 258 P. 879 Neither Best nor appellate and trial fairly level for a courts Brown, supra, make reference to the Contempt, definition, obvious reason. generis. term Both sui are Oklahoma Su law, case general authority, is a crimi preme Court dealing part decisions See, nal оffense. Deskins v. 62 that jurisdiction Court’s pro Okl.Cr. 71 P.2d 502 (1937). The ceedings growing litigation. out of civil contempt, Oklahoma Statutes which define Best, fact, Cannon, adopts cites outline the elements thereof and fix the ‍‌​​​​​‌​​​‌​‌​​​‌​‌‌‌​‌​​‌‌‌​‌​​​‌‌​​​‌​​​​‌​​​‌‍reasoning. same basic therefor are found in Title The convoluted facts and circumstances under “Crimes and Punishments.” O. gаve opinion, Dancy rise to the su- S. and 568. §§ pra, apply make even it more difficult to to Judge Brett himself, writing for the case at bar than to Fulreader. Much in Court Hunter v. jurisdic- of the with Dancy holding dealt a “* * * (1962), 357 stated: the matter dispute tional between the of Crimi- Court defining of degrees crimes fixing and of Appeals nal and the Oklahoma legislative is power.” one of Court, dispute long a resolved since Judge 21 Brett then cited § Further, dispute case law and statute. that which states no act or omission be shall apparently resolved at the time Can- except deemed criminal as authorized non as was written inasmuch none of the (Title 21), this code indicating least reported impair vitality decisions its with implication prohibited by that those acts exception lone of Fulreader. are, fact, 21 Title in “crimes.” Fifth, relying upon in Judge Brett, Ful- Second, Oklahoma, law, by case has held reader, points out this Court has recited a presence of the in approval “sui rule generis” with court, bar, as in the case at to be direct Pate, supra. Sullivan and Insofar as the criminal contempt. Cannon v. 58 concerned, agree. we Sullivan case is In Okl.Cr. 55 P.2d 135 Sullivan, language we note the exact Third, case, supra, Cannon which has theory generis Fulreader and sui re- overruled, nevеr been directly holds produced syllabi, although in the first not specifically Article 25 of the Okla- pointed body opinion. in As we abrogates homa Constitution the doctrine earlier, disagree with the out we statement that proceedings punish to contempts settled” in Oklahoma is “Well law are sui generis. opinion, Judge In that point. on that pointed Doyle out: Pate, perhaps regard supra, we feel we “There is to no other state a With with reading provision disagree since a close containing Constitution a simi- case, provision.” of the cases lar to this like two much based, that ab- reveals which Fulreader is Judge Doyle’s quote concerns the direct implied is made solutely no reference grant power by and broad the framers theory ad- regard generis with sui our state constitution to the define, colleague’s punish in dissent. regulate, contempt. my vanced State, Okl.Cr., 429 dissent, (1963); Morrow v. Judge early portion his disapproval of dismiss- his indicates Brett judg- "formal of a ing an for lack colleague my think occu- Lest having first sentence” without

ment and pies position concerning minority our conviction reiterate same. We defined contempt, I would direct and criminal Baker, supra, applied in rule that the cited general authorities. attention to the situa- that the since we do here seq.; Contempt, Am.Jur.2d, 4 et C.J.S. “special proceeding,” but so at bar tion 3, 5(1) seq. Contempt et §§ begs reply question. simple Finally, Judge Brett our refer- dismisses States reasoning of the United ence to the Judge dissent refers us to the Brett’s expressed Cheff scholarly of con- treatment lengthy and suprа, jury concerning with tempt note Young, jail might draw who trials for contemnors the Court was not satisfied some interest because, as he exceeding six months terms in that judgment and commitment states, summarily are handled such matters “technically preferring the cor- more jury required. no Deskins, set toto out rect” documents then, my colleague appear It would supra. affirming difficulty have no would holding specifically states The Deskins conviction, assuming arguendo offense, fur- contempt is criminal con- only question before the Court ther, opinion graphically illustrates trial, right jury cerned denial proper form of those items summarily sentenced where a to, the text writers refer Brett indicates $5,000 years fine. and a to five contemnor sentences,” say “judgments foregoing and with an In view of the for committment and “orders [sic].” rapid- practical eye toward the facts our Doyle, writing require- ly rising increasing caseload’s ever Deskins, “Judgment and orderly sets out Sentence rules at adherence to the ment for Contempt” and levels, Direct ‍‌​​​​​‌​​​‌​‌​​​‌​‌‌‌​‌​​‌‌‌​‌​​​‌‌​​​‌​​​​‌​​​‌‍Court on the Presid- concur with all showing proper form “Commitment” ing Judge. each as dictated 568.

and content of

Therefore, adopt the form out- we would

lined in fill the void Deskins to Robinson, left in su-

Brett feels we have

pra, by failing to define “formal interest, point As a

and sentence.” sought granted Post- Robinson Appellant, COTHRUM, Lee Richard by this in Robin- Relief Conviction Okl.Cr., 503 son Appelleе. Oklahoma, The STATE failed to trial court follow because No. A-16124. 568. Appeals of Oklahoma. of Criminal apparently Brett Sept. 7, 1972. persuaded judge feels his that when a Rehearing Denied Dec. 1972. “Judge’s are sufficient Trial Notes” render, might support any judgment he right perfectly for that

that it’s all ignore technicality statute and preparing a time and trouble of

avoid the cannot

formal order. We slipshod such ‍‌​​​​​‌​​​‌​‌​​​‌​‌‌‌​‌​​‌‌‌​‌​​​‌‌​​​‌​​​​‌​​​‌‍tactics and Bishop v. held.

so

Case Details

Case Name: Roselle v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Nov 28, 1972

Citation: 503 P.2d 1293

Docket Number: A-17319

Court Abbreviation: Okla. Crim. App.