Roselle v. State

SIMMS, Judge

(specially concurring):

We feel we must add our concurrence to the decision and result reached by Judge Bussey and while we agree with that portion of Judge Brett’s dissent that indicates the majority opinion appears to be a reversion, we must respectfully observe that such a reversion is necessary in order to *1297follow the law and to preserve some semblance of order in our appellate process.

We strongly disagree with that portion of the holding in Fulreader, supra, which stands for the proposition that proceedings for direct contempt are stii generis, that is neither civil nor criminal, for several reasons.

First, historically, direct contempts have been treated as “criminal” in Oklahoma’s appellate and trial level courts for a fairly obvious reason. Contempt, by definition, case law, and general authority, is a criminal offense. See, Deskins v. State, 62 Okl.Cr. 314, 71 P.2d 502 (1937). The Oklahoma Statutes which define contempt, outline the elements thereof and fix the punishment therefor are found in Title 21, under “Crimes and Punishments.” 21 O.S. 1971, §§ 565, 566, 567, and 568.

Judge Brett himself, writing for the Court in Hunter v. State, Okl.Cr., 375 P.2d 357 (1962), stated: “* * * the matter of defining crimes and fixing degrees of punishment is one of legislative power.” Judge Brett then cited 21 O.S.1971, § 2, which states no act or omission shall be deemed criminal except as authorized by this code (Title 21), indicating at least by implication that those acts prohibited by Title 21 are, in fact, “crimes.”

Second, Oklahoma, by case law, has held a direct contempt in the presence of the court, as in the case at bar, to be direct criminal contempt. Cannon v. State, 58 Okl.Cr. 451, 55 P.2d 135 (1936).

Third, the Cannon case, supra, which has never been overruled, holds directly and specifically Article 2, § 25 of the Oklahoma Constitution abrogates the doctrine that proceedings to punish for contempts are sui generis. In that opinion, Judge Doyle pointed out:

“There is perhaps no other state with a Constitution containing a provision similar to this provision.”

Judge Doyle’s quote concerns the direct and broad grant of power by the framers of our state constitution to the Legislature to regulate, define, and punish contempt.

Fourth, a close reading of Fulreader, supra, concerning the sui generis portion of that opinion, a per curiam decision by the Oklahoma Supreme Court, reveals that portion of the opinion is grounded entirely upon three decisions:

Best v. Evans, 297 P.2d 379 (Okl.1956); Brown v. State, 178 Okl. 506, 62 P.2d 1208 (1936); and, Dancy v. Owens, 126 Okl. 37, 258 P. 879 (1927). Neither Best nor Brown, supra, make any reference to the term sui generis. Both are Oklahoma Supreme Court decisions dealing in part with that Court’s jurisdiction in contempt proceedings growing out of civil litigation. Best, in fact, cites Cannon, and adopts the same basic reasoning.

The convoluted facts and circumstances which gave rise to the Dancy opinion, supra, make it even more difficult to apply to the case at bar than to Fulreader. Much of the Dancy holding dealt with a jurisdictional dispute between the Court of Criminal Appeals and the Oklahoma Supreme Court, a dispute long since resolved by case law and statute. Further, that dispute apparently was resolved at the time Cannon was written inasmuch as none of the reported decisions impair its vitality with the lone exception of Fulreader.

Fifth, Judge Brett, in relying upon Ful-reader, points out this Court has recited the “sui generis” rule with approval in Sullivan and Pate, supra. Insofar as the Sullivan case is concerned, we agree. In Sullivan, we note the exact language of Fulreader and the sui generis theory is reproduced in the first syllabi, although not in the body of the opinion. As we pointed out earlier, we disagree with the statement that the law in Oklahoma is “Well settled” on that point.

With regard to Pate, supra, we feel we must disagree since a close reading of that case, much like two of the cases upon which Fulreader is based, reveals that absolutely no reference is made or implied with regard to the sui generis theory advanced in my colleague’s dissent.

*1298In the early portion of his dissent, Judge Brett indicates his disapproval of dismissing an appeal for lack of a "formal judgment and sentence” without having first defined same. We reiterate our conviction that the rule cited in Baker, supra, applied here since we do not agree that the situation at bar is a “special proceeding,” but so simple a reply begs the question.

Judge Brett’s dissent refers us to the lengthy and scholarly treatment of contempt in Young, supra, and we note with some interest the Court was not satisfied with judgment and commitment in that case, preferring the more “technically correct” documents set out in toto in Deskins, supra.

The Deskins holding specifically states contempt is a criminal offense, and further, the opinion graphically illustrates the proper form of those items which Judge Brett indicates the text writers refer to, that is to say “judgments or sentences,” and “orders for committment [sic].”

Judge Doyle, writing for the Court in Deskins, sets out “Judgment and Sentence of the Court on Direct Contempt” and the “Commitment” showing the proper form and content of each as dictated by § 568. Therefore, we would adopt the form outlined in Deskins to fill the void Judge Brett feels we have left in Robinson, supra, by failing to define “formal judgment and sentence.” As a point of interest, Robinson sought and was granted Post-Conviction Relief by this Court in Robinson v. State, Okl.Cr., 503 P.2d 582, 1972, because the trial court failed to follow § 568.

In this case, Judge Brett apparently is persuaded that when a trial judge feels his “Judge’s Trial Notes” are sufficient to support any judgment he might render, that it’s perfectly all right for that judge to ignore the technicality of a statute and avoid the time and trouble of preparing a formal typewritten order. We cannot agree with such slipshod tactics and have so held. Bishop v. State, Okl.Cr., 377 P.2d 845 (1963); Morrow v. State, Okl.Cr., 429 P.2d 1021 (1967).

Lest my colleague think Oklahoma occupies a minority position concerning direct and criminal contempt, I would direct his attention to the general authorities. 17 Am.Jur.2d, Contempt, § 4 et seq.; 17 C.J.S. Contempt §§ 3, 5(1) et seq.

Finally, Judge Brett dismisses our reference to the reasoning of the United States Supreme Court expressed in Cheff v. Schnackenberg, supra, concerning jury trials for contemnors who might draw jail terms exceeding six months because, as he states, such matters are handled summarily and no jury is required.

It would appear then, that my colleague would have no difficulty in affirming a contempt conviction, assuming arguendo the only question before the Court concerned denial of the right to jury trial, where a trial judge summarily sentenced a contemnor to five years and a $5,000 fine.

In view of the foregoing and with an eye toward the practical facts of our rapidly rising caseload’s ever increasing requirement for orderly adherence to the rules at all levels, we must concur with the Presiding Judge.