DOWDY v. CASWELL

DOWDY v. CASWELL
2002 OK CR 11
43 P.3d 412
73 OBJ 917
Case Number: PR-2002-123
Decided: 03/07/2002
EMILY MICHELLE DOWDY, Petitioner -vs- THE HONORABLE SUSAN P. CASWELL, JUDGE OF THE DISTRICT COURT FOR OKLAHOMA COUNTY, AND THE STATE OF OKLAHOMA, Respondents

[43 P.3d 413]

ORDER GRANTING APPLICATION FOR WRIT OF
PROHIBITION AND REMANDING TO THE DISTRICT COURT

¶1 Petitioner, Emily Michelle Dowdy, has filed an application for writ of prohibition asking this Court to order the Honorable Susan P. Caswell, District Judge, to vacate her order finding a lack of jurisdiction to consider sentence modification in Case No. CF-1999-3910 in the District Court of Oklahoma County. On February 8, 2001, Petitioner was convicted of Manslaughter in the First Degree, and a sentence of twenty-five years imprisonment was imposed. On February 16, 2001, Petitioner's direct appeal, No. F-2001-171, was initiated by the filing of a notice of intent to appeal and designation of record in the District Court and in this Court. On April 20, 2001, the petition in error was filed in Petitioner's appeal. Briefs have been filed and the appeal has been submitted to this Court for a decision.

¶2 On December 27, 2001, Petitioner filed a motion for sentence modification in the District Court, pursuant to

¶3 The Legislative power of the State of Oklahoma shall be vested in a Legislature, consisting of a Senate and a House of representatives. Okla. Const. Art. V, § 1. The Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. Okla. Const. Art. IV, § 1. Case law sets general rules in the interpretation and application of the laws of Oklahoma. However, such general rules are displaced by enactments of the Legislature, so long as those enactments are not violative of the Constitution or otherwise unlawful. Okla. Const. Art. V, § 1, Art. IV, § 1.

¶4 The language of Section 982a of Title 22 of the Oklahoma Statutes is very clear. State v. Mathews,

¶5 The general rule relied upon by Judge Caswell, that after a case is appealed to this Court the trial court is divested of all jurisdiction except to comply with the mandate, has not been addressed in conjunction with a statute specifically authorizing action by the trial court in a criminal case. Crider,

¶6 The fact the Legislature has authorized a trial court to take action in a criminal case, while an appeal is pending in this Court, has the potential for confusion and conflict. However, such potential can be minimized through the diligence and cooperation of the courts. If a trial court considers modification of a sentence in a criminal case under Section 982a while an appeal is pending, the trial court shall notify this Court in writing of the hearing on sentence modification, and file a copy of the notice in the appeal file. When the trial court makes its decision on whether a sentence should be modified, a written order containing the decision shall be provided to this Court, and filed in the appeal file.

¶7 In accordance with the foregoing, this Court finds Judge Caswell, and the District Court, were authorized by law to hear and decide Petitioner's request for sentence modification under Section 982a. Rule s 10.6(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2002). Therefore, the application for writ of prohibition, asking this Court to order Judge Caswell to vacate her order finding a lack of jurisdiction to consider sentence modification in Case No. CF-1999-3910 in the District Court of Oklahoma County, should be, and is hereby, GRANTED.

¶8 A decision on Petitioner's request for sentence modification was not made within the twelve (12) month period provided by Section 982a because Judge Caswell relied on the general rule concerning appellate jurisdiction, and because this matter has been pending in this Court through expiration of the period. The District Court has not attempted to extend the twelve (12) month period, and to decide a request to modify sentence after the period has expired. Cf. State v. Mathews,

¶9 IT IS SO ORDERED.

¶10 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 7th day of March, 2002.

/s/ Gary L. Lumpkin

/s/ Charles A. Johnson

/s/ Charles S. Chapel

/s/ Reta M. Strubhar

/s/ Steve Lile

ATTEST:

/s/James Patterson