Salazar v. State
Opinions
[518]*518 ORDER DENYING PETITION FOR REHEARING AND DIRECTING ISSUANCE OF MANDATE
Maximo Lee Salazar, appellant, was tried by jury and convicted of the crimes of First Degree Murder (21 O.S.Supp.1982, § 701.-7(A)) and First Degree Burglary (21 O.S. 1981, § 1431) in Comanche County District Court Case No. CRF-87-460. The jury set punishment on the burglary conviction at ten (10) years imprisonment. Following a second stage proceeding, the jury recommended appellant be put to death for the murder conviction. The trial court sentenced accordingly and appellant appealed to this Court. By published opinion handed down on April 29, 1993, this Court affirmed Salazar’s Judgment and Sentence for First Degree Burglary. Salazar’s conviction for First Degree Murder was also affirmed, but his sentence of death was vacated and the cause remanded for resentencing. 852 P.2d 729.
Pursuant to Rule 3.14, Rules of the Court of Criminal Appeals, 22 O.S.Supp. 1993, Ch. 18, App., the State has filed a Petition for Rehearing. According to Rule 3.14, a Petition for Rehearing shall not be filed as a matter of course, but only if at least one of the following criteria is met:
(1) [S]ome question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court, or
(2) [T]he decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.
In its Petition for Rehearing, the State raises four grounds for rehearing: (1) the decision is in conflict with Pollard v. State, 521 P.2d 400 (Okl.Cr.1974), a case not cited by the State in its brief; (2) the life without parole provision should not be applied retroactively; (3) proposed House Bill No. 1366 indicates a legislative intent that the life without parole provision applies only to persons who committed their crimes after November 1, 1987; and (4) the life without parole provision could be waived if not specifically requested. As to the State’s first ground for rehearing, a review of Pollard v. State, 521 P.2d 400 (Okl.Cr.1974), shows that case is distinguishable from Salazar’s case and does not change the Court’s decision. As to the second and fourth grounds, those issues were addressed in this Court’s opinion and are not grounds for rehearing. As to the third ground, the final version of House Bill No. 1366 deleted the section on the life without parole provision, and thus does not apply to this case.
On June 10, 1993, the State filed a motion to supplement its Petition for Rehearing asserting that the newly enacted Senate Bill No. 451 (enacted June 7, 1993), which contains language amending 22 O.S. 1991, § 701.10a, warrants a rehearing of the Salazar case. This contention is without merit. Section 701.10a(l)(a) was amended so that when a capital case is remanded for resentencing the judge or the jury is authorized to impose “any sentence authorized by law at the time of the commission of the crime ...” To apply this statute to Salazar would deprive him of a sentencing option that this Court has stated was available to him in Wade v. State, 825 P.2d 1357 (Okl.Cr.1992), and Allen v. State, 821 P.2d 371, 376 (Okl.Cr.1991), and would result in harsher penalty options, which would violate the prohibition against [519]*519imposing a harsher punishment in an ex post facto manner. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); J.M.R. v. Moore, 610 P.2d 811 (Okl.Cr.1980). Thus, the State’s argument that its Petition for Rehearing should be granted based on this newly enacted statute is without merit.
IT IS THEREFORE THE ORDER OF THE COURT that the Petition for Rehearing filed herein be DENIED. The Clerk of this Court is directed to issue the mandate forthwith.
IT IS SO ORDERED.
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1993 OK CR 39 (Salazar v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.