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1979 OK 158
603 P.2d 761
Case Number: 52533, 53576
Decided: 11/27/1979
Supreme Court of Oklahoma


Appeal from District Court, Seminole County; Rudolph Hargrave, Judge.

¶0 Motion to dismiss appeal, initially sought to be prosecuted in the Court of Criminal Appeals, from judgment removing the Sheriff from office in a proceeding brought by the Board of County Commissioners pursuant to 22 O.S. 1971 § 1194 . MOTION DENIED.

Valdhe F. Pitman, Eufaula, Robert. Unruh, Jr., Oklahoma City, for appellant-petitioner.
Gordon R. Melson, Dist. Atty., Ada, for appellee-respondent.

OPALA, Justice:

¶1 In this matter, originally attempted to be prosecuted in the Court of Criminal Appeals as a misdemeanor appeal, the removed Sheriff [Sheriff] seeks review of an adverse judgment on a jury verdict in a proceeding by the Board of County Commissioners [Board], pursuant to 22 O.S. 1971 § 1194 , to oust him from office. On the Board's motion to dismiss, the principal question to be answered is whether the Court of Criminal [603 P.2d 762] Appeals or this court, either or both, may take cognizance of an appeal in which review is sought of a judgment rendered in a removal-from-office proceeding initially brought either upon a grand jury accusation pursuant to 22 O.S. 1971 § 1182 or, as in this case, upon a resolution of the board of county commissioners acting under the authority of 22 O.S. 1971 § 1194 .

¶2 The chronology critical to our consideration here begins November 16, 1977 when the Sheriff was found guilty by a jury verdict on five different counts of misconduct in office. His motion for new trial, filed on November 28, was overruled and judgment on the verdict of conviction came to be imposed on December 6, 1977.

¶3 Although not without at least one attempt at critical reappraisal

[603 P.2d 764]

¶4 Mindful of post-Pate uncertainty, we give our pronouncement prospective application. It will operate with effect from and after the date this opinion is promulgated. Poafpybitty v. Skelly Oil Company, supra.

¶5 This appeal will be treated as one falling in the sui generis class of proceedings over which either court of last resort may exercise jurisdiction. Since the case was timely brought in the other court, we reaffirm our previous order of transfer and deny the motion to dismiss.


¶7 HARGRAVE, J., disqualified.


1 Under the provisions of 22 O.S. 1971 § 1181 et seq. an ouster proceeding may be instituted either by a grand jury accusation or by action of the board of county commissioners. If the proceeding is brought upon grand jury accusation, it is variously styled as "State ex rel. Grand Jury of ____ Co. v. ____" [State ex rel. Grand Jury of McCurtain Co. v. Pate, Okl., 572 P.2d 226 [1977]], "State v. ____" [State v. Smith, 151 Okl. 183, 3 P.2d 178 [1931]] or "Grand Jury of ____ Co. v. ____" [Reubin v. Thompson, Okl., 406 P.2d 263, 264 [1965]]. If the proceeding is brought pursuant to a resolution of the board of county commissioners, it must be styled "The Board of County Commissioners of ____ Co. v. ____" [Smith v. State, 13 Okl.Cr. 619, 166 P. 463, 464 [1917]; Muskogee County, Oklahoma v. Lanning & McRoberts, 51 Okl. 343, 151 P. 1054 [1915]].

2 Unless otherwise authorized by the judge, a motion for new trial in a criminal case must be filed before the date set for imposition of judgment. Rule 2.3B, Rules of the Court of Criminal Appeals, 22 O.S. 1971, Ch. 18, App.

3 This procedure appears to be required in criminal appeals by Rules 2.3A and 2.7A, Rules of the Court of Criminal Appeals, 22 O.S. 1971, Ch. 18, App.

4 Procedure in criminal appeals is governed largely by the Rules of the Court of Criminal Appeals which are given "the force of statute" by the provisions of 22 O.S. 1971 § 1051 (b). The Sheriff complied both with the controlling statutes and the applicable rules. See Rule 2.3C, Rules of the Court of Criminal Appeals.

5 Justice Riley, dissenting in McCasland v. Board of Com'rs, 126 Okl. 103, 258 P. 750, 753 [1927] appealed for a re-examination of the then extant exposition to relabel "a special proceeding in removal of officers" as "criminal in its nature". He called attention to the jurisdictions in which this view had been adopted. See annotation in 81 A.L.R. 1089 [1932].

6 O'Bryan v. State, 26 Okl. 470, 109 P. 304 [1910]; State v. Alexander, 4 Okl.Cr. 370, 111 P. 655 [1910]; O'Bryan v. State, 4 Okl.Cr. 636, 112 P. 763 [1911]; Myers et al. v. State, 137 Okl. 272, 278 P. 1106 [1929]; State v. Scarth, 151 Okl. 178, 3 P.2d 446, 450 [1931], 81 A.L.R. 1082.

7 Okl., 572 P.2d 226 [1977].

8 572 P.2d at 228.

9 572 P.2d at 229.

10 22 O.S. 1971 § 1191 .

11 Our research revealed at least one other [post-Pate] case in which the jurisdiction of the Court of Criminal Appeals was invoked in reliance on Pate to affect a pending removal proceeding by issuance of a writ of prohibition. George D. Snider, Petitioner v. Lloyd H. Henry, Respondent, P-78-395. A temporary order staying trial proceedings, issued 7-24-78, was later vacated on 3-6-79 by the decision not to assume original jurisdiction. In its decision the Court of Criminal Appeals recited:

"In State v. Scarth, 151 Okl. 178, 3 P.2d 446 (1931), the Oklahoma Supreme Court in its second Syllabus of the Court stated:

`An action to remove an official under a grand jury accusation is in its nature a civil and not a criminal action.'

"We realize that this case [was] criticized by the Oklahoma Supreme Court in State of Oklahoma ex rel. the Grand Jury of McCurtain County v. Pate, 572 P.2d 262 (1977), but until that court specifically designates ouster proceedings as one of a criminal nature we are without authority to assume jurisdiction."

12 The dichotomous division of Oklahoma appeals into "civil" and "criminal" has never been perfectly airtight. Although case law expressions might reject the concept of "shared" power over any class of appeals by clinging to "undivided" and "exclusive" jurisdiction in each class, State v. Brown, 8 Okl.Cr. 40, 126 P. 245, 249 [1912] and Buck v. Dick, Warden, 27 Okl. 854, 113 P. 920 [1911], the marketplace reality contradicts such notion. Shared responsibility has been exercised in juvenile delinquency cases, Anderson v. Walker, Okl., 333 P.2d 570 [1958] and Killion v. Walker, Okl., 334 P.2d 454 [1959], and in direct contempt matters, Fulreader v. State, Okl., 408 P.2d 775, 776 [1965] and Sullivan v. State, Okl.Cr., 419 P.2d 559, 560 [1966]. Appeals in juvenile delinquency cases are now brought to the Court of Criminal Appeals, 10 O.S.Supp. 1979 § 1123 , Carder v. Court of Criminal Appeals, Okl., 595 P.2d 416, 419 [1978], while direct contempt and habeas corpus matters remain a "mixed bag." Rule 1.10(c)(1) and (2), Rules on Perfecting a Civil Appeal, 12 O.S. Ch. 15 App. 2.

13 Ouster proceedings may be instituted by grand jury accusation, 22 O.S. 1971 § 1182 , by resolution of the board of county commissioners, 22 O.S. 1971 § 1194 , or by the Attorney General, 51 O.S. 1971 § 94 . Judicial removal proceedings before the Court on the Judiciary, though essentially "civil", are within the exclusive jurisdiction of that court. Sharpe v. State ex rel. Oklahoma Bar Association, Okl.Jud., 448 P.2d 301, 306 [1968].

14 For appeals from sui generis proceedings our Rules 1.10(c)(1) and (2), as amended to become effective June 1, 1974, provide that if the case is brought timely in the wrong court, it shall be deemed timely in the proper forum.