Leftwich v. Alcorn

2011 OK CR 27, 262 P.3d 770, 2011 Okla. Crim. App. LEXIS 30, 2011 WL 5075116

• Court: Court of Criminal Appeals of Oklahoma
• Decided: October 13, 2011
• Docket: PR-2011-862
• Status: Published

Opinions

ORDER DECLINING TO ASSUME JURISDICTION AND DENYING MOTIONS

T1 The Petitioner has filed an application for original jurisdiction, a petition for writ of prohibition, and in the alternative a petition for writ of mandamus in Case No. CF-2010-8067 in the District Court of Oklahoma County.

12 This Court previously denied Petitioner's petition for writ of prohibition or mandamus based on the District Court's decision denying Petitioner's motions to dismiss. Leftwich v. Alcorn, PR-2011-319 (Ok. Cr. June 9, 2011) (not for publication). Petitioner subsequently filed for a writ of prohibition or mandamus in the Oklahoma Supreme Court. After a hearing, that Court declined to assume original jurisdiction and dissolved a stay of the trial court proceedings. Leftwich v. Court of Criminal Appeals, 2011 OK 80, 262 P.3d 750, 2011 WL 4875305.

T3 Petitioner returns to this Court. She asks this Court to assume original jurisdiction of her petition. While this Court has exclusive appellate jurisdiction in eriminal cases, Oklahoma Constitution art. VII, § 4, no provision in either this Court's rules or statute provides for such a request. Petitioner's original petition to this Court was timely filed within thirty days from the District Court's April 15, 2011 Order denying her motions to dismiss. Rule 10.1(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011). Petitioner has filed this second application more than ten days prior to the date the case is set for preliminary hearing in the District Court. Rule 10.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011). However, Petitioner is not asking for relief from any district court order issued between this Court's denial of her first petition and the filing of this petition. There is no such order, nor has Petitioner requested any type of relief from the District Court between the date of the Supreme Court Order and the filing of this application. This Court may only grant relief on an extraordinary writ where a petitioner has been denied relief in a district court. Rule 10.1(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011).

In asking this Court to assume original jurisdiction, Petitioner relies solely on dicta in the Supreme Court Order declining original jurisdiction. In the body of the Order, the Supreme Court states it declines original jurisdiction "in order to allow the parties the opportunity to seek appropriate relief in the Court of Criminal Appeals." Leftwich, 2011 OK 80, ¶ 3, 262 P.3d 750. There is no such avenue open in our Rules. Essentially, Petitioner asks this Court to rehear the substance of her first petition. This Court's June 9, 2011 decision on that petition constituted a final order. There is no petition for rehearing from an order denying a request for an extraordinary writ. Rule 10.6(D), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2011). At this point in these proceedings, there is no decision in the District Court from which Petitioner may timely appeal and no findings of fact that would support any additional substantive ruling by this Court. This Court does not act as a factfinder in the first instance. Petitioner's claim that her activities were constitutionally protected requires a factual determination that has not been made, and hence is premature in this Court.

T5 The Supreme Court Order of September 19, 2011, states that the parties agreed that this Court's previous Order in this case contained a mistake of law. On the contrary, our finding that "[the Speech and [sic] Debate. Clause in the Oklahoma Constitution includes an express exception for felonies", is an accurate statement of law. Leftwich v. Alcorn, PR-2011-319 at 8. Insofar as such an agreement may have existed among some of the named parties, we refer them to the following cases. Brock v. Thompson, 1997 OK 127, ¶ 14, 948 P.2d 279, 287; Oklahoma State Senate ex rel. Roberts v. Hetherington, 1994 OK ¶ 16, 868 P.2d 708; Howard v. Webb, 1977 OK 68, 116, 570 P.2d 42, 47; Doe v. McMillan, 412 U.S. 306, 98 S.Ct. 2018, 86 L.Ed.2d 912 (1978); Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 588 (1972); Unmited States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 LEd.2d 507 (1972); Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278 (1908).

T6 Petitioner's applications for relief are not proper under our Rules. We DECLINE TO ASSUME ORIGINAL JURISDICTION. Petitioner's Motion for Stay is DENIED. Petitioner's Motion to Incorporate Or Transfer Appendix is DENIED. Petitioner's Motion Requesting Oral Argument is DENIED.

7 IT IS SO ORDERED.

/s/ Arlene Johnson ARLENE JOHNSON, Presiding Judge /s/ David B. Lewis DAVID B. LEWIS, Vice Presiding Judge /s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge /s/ Charles A. Johnson CHARLES A. JOHNSON, Judge /s/ Clancy Smith CLANCY SMITH, Judge