STATE v. KISTLER
This text of 2017 OK CR 24 (STATE v. KISTLER) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
STATE v. KISTLER
2017 OK CR 24
Case Number: PR-2017-518
Decided: 10/25/2017
Supreme Court of Oklahoma
Cite as: 2017 OK CR 24, 0 0
ORDER GRANTING PETITION FOR WRIT OF PROHIBITION
¶1 The State of Oklahoma, Petitioner, has filed a petition for writ of prohibition, or in the alternative, writ of mandamus, asking this Court to prohibit the Respondent, the Honorable Stephen Kistler, Associate District Judge, from enforcing his order requiring the State to dismiss one count of either Burglary in the First Degree, or Robbery With a Firearm and proceed to trial on only one charge in Case No. CF-2016-364 in the District Court of Payne County.
¶2 On May 19, 2016, the defendant was charged in Case No. CF-2016-364 with Count 1: Robbery With a Firearm; and Count 2: Burglary in the First Degree. The preliminary hearing was held on December 16, 2016, and the defendant was bound over for trial on both charges. The facts of this case are basically that the defendant broke and entered a dwelling house and, while inside, used a firearm to rob the occupant.
¶3 On March 1, 2017, the defendant filed a motion to dismiss Count 2. The defendant argued he could not be punished for Count 2, pursuant to 21 O.S.2011, § 11(A) and Lawson v. State, 1971 OK CR 188, 484 P.2d 900, because Count 2 involved the same criminal act or omission as Count 1. On March 16, 2017, the State filed its response claiming that Robbery With a Firearm and Burglary in the First Degree are separate crimes that can both be punished in this case. The State argued the Lawson decision can be distinguished from this case as being inconsistent with more recent decisions issued by this Court. On May 17, 2017, Judge Kistler issued his order accepting the defendant's arguments and ordering the State "based upon Lawson v. State, 1971 OK CR 188and 22 [sic] O.S. § 11" to dismiss one of the two counts charged in this case and elect which count to proceed upon at trial.
¶4 Although Lawson has never been expressly overturned, the analysis used to apply Section 11 of Title 21 is now clearly different than any analysis used in Lawson. Decisions issued by this Court subsequent to Lawson have apparently distinguished or even effectively overturned that decision.
¶5 Lawson was appealing to this Court from his conviction for the crime of Burglary in the First Degree and his sentence of twenty years imprisonment. Lawson, 1971 OK CR 188, ¶ 2, 484 P.2d at 901. "[H]e was convicted under the same facts, circumstances and with the same evidence for the crime of 'Robbery With Firearms' for which he was earlier convicted." Id. Lawson's victim was at his home when he was awakened by a noise in the hallway. Lawson, 1971 OK CR 188, ¶ 4, 484 P.2d at 901. When the victim switched on the light, he saw Lawson dressed in black attire, holding a gun pointed at him. Id. Lawson bound and gagged the victim and then started rummaging through the house. Id. A complete inventory of the items Lawson stole from the victim's house was later prepared. Lawson, 1971 OK CR 188, ¶ 5, 484 P.2d at 902. This Court determined that Section 11 of Title 21 prevents multiple punishments "for several crimes committed during one criminal transaction." Lawson, 1971 OK CR 188, ¶ 6, 484 P.2d at 902. This Court found that Lawson's acts were set on foot for the single purpose of committing a burglary, but in fulfilling that purpose, he also committed armed robbery. Id. This Court also found that Lawson's First Degree Burglary and Robbery With Firearms charges were one single transaction based upon the same facts and the same evidence. Lawson, 1971 OK CR 188, ¶¶ 9, 12, 484 P.2d at 903. Because Lawson had already been convicted of and was undergoing punishment for Robbery With Firearms, this Court reversed and remanded Lawson's First Degree Burglary conviction and sentence with instructions to dismiss. Lawson, 1971 OK CR 188, ¶ 13, 484 P.2d at 903.
¶6 In 1980, this Court specifically held that Section 11 of Title 21 was not violated by convicting a defendant of one count of Burglary in the First Degree, two counts of Rape in the First Degree, two counts of Sodomy, and one count of Unauthorized Use of a Motor Vehicle, when the defendant broke into a residence, raped and sodomized the two female residents inside, and then took the keys and left in one of the victim's car. Ziegler v. State, 1980 OK CR 23, ¶¶ 1-3, 610 P.2d 251, 252-53. This Court found that the crime of burglary is complete upon entry; that it was a separate and distinct act from each of the other crimes; and that each crime had separate and distinct elements that did not merge or overlap into the proof of any of the other crimes. Ziegler, 1980 OK CR 23, ¶¶ 9-10, 610 P.2d at 253-54. The Ziegler decision did not address Lawson, and thus obviously did not distinguish or overturn it.
¶7 In 1999, this Court clarified the proper analysis to be used in determining whether Section 11 of Title 21 has been violated. Davis v. State, 1999 OK CR 48, 993 P.2d 124. In Davis, the defendant was convicted of Larceny from a House (count 1), Assault with a Dangerous Weapon (count 2), and Larceny of an Automobile (count 3). The defendant argued that his convictions for all three counts violated the provisions of Section 11. This Court specifically rejected tests that expand the Section 11 prohibition to crimes which are a mere means to some other ultimate objective, or part of some primary offense. Davis, 1999 OK CR 48, ¶¶ 10, 11, 993 P.2d at 126. This Court held that the proper analysis of a Section 11 claim focuses on the relationship between the crimes. Davis, 1999 OK CR 48, ¶ 13, 993 P.2d at 126; see also Sanders v. State, 2015 OK CR 11, 358 P.3d 280 (possession of one firearm cannot be criminalized as both felon in possession and knowingly concealing stolen property); Head v. State
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Cite This Page — Counsel Stack
2017 OK CR 24, 2017 WL 4849040, 2017 Okla. LEXIS 86, 2017 Okla. Crim. App. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kistler-oklacrimapp-2017.