specially concurring.
I concur in the opinion of the Court. I write separately to explain what I perceive to be the rationale behind overruling Brown v. State, 314 P.2d 362, 366 (Okl.Cr.1957).
The Court is correct when it observes the right to have a jury help determine sentence *298is guaranteed by statute. The pertinent section reads:
In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as herein provided.
22 O.S.1991, § 926 (emphasis added). The option of jury determination of punishment is discretionary and only becomes mandatory if a defendant makes a separate request for the jury to assess the punishment. The language “except as herein provided” clearly indicates this section can be modified by other sections. The Court cites 22 O.S.1991, § 991a as an example. Another is 22 O.S. 1991, § 982, providing for a presentence investigation to provide the trial court with a more thorough picture of the circumstances of the offense in an effort to aid the court in its sentencing. As these statutes show, the jury’s recommendation is not carved in stone, but is a recommendation which the judge should follow unless extenuating circumstances dictate otherwise.
It is because the trial judge has this power to deviate from the jury’s recommendation that Brown is incorrect. It is my belief that 21 O.S.1991, § 64 is a general punishment provision which, in the absence of a specific fine, should be given to the jury as part of the punishment option.
I disagree with the Court’s characterization of the standing issue raised by Appellant. The Court here confuses standing for purposes of suppression with possessory interest in the land required for conviction of the crime with which he was charged. The standing issue must be raised first and determined before the trial court can inquire into the legality of the search or seizure. In this, the burden of proof is on the Appellant. Champeau v. State, 678 P.2d 1192, 1196-96 (Okl.Cr.1984), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 183 (1984). The jury’s determination Appellant had the necessary possessory interest in the property is a finding made after all the evidence has been submitted and after the question whether the evidence should be suppressed. Therefore, Appellant could claim possessory interest for purposes of asserting his motion to suppress without relieving the prosecution of its responsibility to prove the possessory interest to convict him of the crime.
However, I agree with the result reached in the Court’s opinion. Accordingly, I concur.
ORDER GRANTING PETITION FOR REHEARING IN PART AND DENYING PETITION FOR REHEARING IN PART
Larry Don Fite was charged in Bryan County District Court, Case No. CRF-88-89, with Unlawful Cultivation of Marijuana, After Two or More Felonies, in violation of 63 O.S.Supp.1987, § 2-509. Fite was tried by a jury before the Honorable Rocky L. Powers, District Judge. The jury returned a verdict of guilty and recommended Fite be sentenced to twenty (20) years imprisonment and fined $100,000. The trial court sentenced him in accordance with the jury verdict. From this Judgment and Sentence, Fite perfected his appeal in this Court. On December 21,1993, by published decision, we affirmed Fite’s Judgment and Sentence, but modified the fine imposed on Fite from $100,-000 to $10,000.
Pursuant to Rule 3.14, Rules of the Court of Criminal Appeals, 22 O.S.Supp.1993, Ch. 18, App., Fite has filed a Petition for Rehearing. Fite raises two propositions in his Petition for Rehearing:
Proposition I: An unjustified warrantless search violated Mr. Fite’s constitutional rights to a fair trial and due process of law.
Proposition II: This Court’s decision to assess a new fine against petitioner was arbitrary and violative of principles of due process of law.
Rule 3.14, subd. B of the Rules of the Court of Criminal Appeals provides that a petition for rehearing shall be filed only if:
(1) ... some decision decisive of the ease and duly submitted by the attorney of record has been overlooked by the Court, or
*299(2) .. .the 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.
Having examined Fite’s Petition for Rehearing, and having been fully advised of the premises, this Court finds that Proposition I of the Petition should be denied. However, we find Fite has raised an issue in Proposition II that requires review by this Court.
This Court found Fite was improperly fined under 63 O.S.Supp.1987, § 2-609 and his original fine of $100,000 could not stand. We concluded, however, that under section 64 of Title 21 a fine of $10,000 could be imposed on Fite. In so holding, we overturned the rule of Brown v. State, 314 P.2d 362, 366 (Okl.Cr.1957), which limited the application of section 64 to eases where “(1) a jury has been waived and the ease is tried to the court; (2) where the jury fails or refuses to assess the penalty; or (3) on a plea of guilty by the defendant.” We held that where a defendant is tried and sentenced by the jury, the court may impose a fine under section 64.
Fite now contends our decision overturning Brown should not be applied to him as the application of our new rule to Fite would violate due process. We agree. Our decision to overturn Brown was not foreseeable, and Fite lacked fair warning that section 64 could be applied to him. See Marks v. United States, 430 U.S. 188, 191-192, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977); Bouie v. Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894 (1964); United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954); Hughes v. State, 868 P.2d 730, 735 (Okl.Cr. Feb. 5, 1994). Accordingly, we hold the imposition of a fine on Fite was improper.
IT IS THEREFORE THE ORDER OF THE COURT that the Petition for Rehearing filed herein be DENIED IN PART AND GRANTED IN PART. The Judgment and Sentence of Fite is AFFIRMED, and the fine of $10,000 is DISMISSED. The Clerk of this Court is directed to issue the mandate forthwith.
IT IS SO ORDERED.
/s/ Gary L. Lumpkin GARY L. LUMPKIN, Presiding Judge
/s/ Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge
/s/ James F. Lane JAMES F. LANE, Judge
/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge/s/ Reta M. Strubhar, Judge RETA M. STRUBHAR, Judge