specially concurring:
I reluctantly concur in the Court’s opinion. Although I believe it was a grave oversight, it appears plain to me the Legislature simply did not provide for a time restriction on a second and subsequent application for post-conviction relief in situations such as Petitioner’s.
If it wasn’t plain before, our decision in Duvall v. State, 871 P.2d 1386 (Okl.Cr.1994), cited in the opinion, makes it plain provisions of the non-capital portion of the post-conviction procedure act govern in the absence of a specific provision in § 1089. Section 1089 does not address subsequent post-conviction applications, so we must therefore go to § 1086. That section is silent concerning time restrictions.
This reasoning is strengthened by language in 22 O.S.Supp.1992, § 1001.1. That provision reads in pertinent part:
A. The execution of the judgment in cases where sentence of death is imposed shall be ordered by the Court of Criminal Appeals to be carried out sixty (60) days after the defendant fails to meet any of the following time conditions:
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2. If a defendant does not file the first application for post-conviction relief in the state district court within sixty (60) days of a denial of certiorari or from a decision by the United States Supreme Court from his direct appeal, or from the expiration date of the time for filing a petition for writ of certiorari with the United States Supreme Court;
3. If a defendant does not file an appeal to the Oklahoma Court of Criminal Appeals from a denial of state post-conviction relief within forty-five (45) days from the date the transcript is filed in the Court of Criminal Appeals or, if no evidentiary hearing was held, within forty-five (45) days from the date of filing of the notice of appeal;
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B. The filing of a petition for rehearing in any federal court shall not serve to stay the execution dates or the time restraints set forth in the above section unless the defendant makes the showing set forth in subsection C of this section. The provisions of subsection A do not apply to second or subsequent petitions or appeals filed in any court. The filing of a second or subsequent petition or appeal in any court does not prevent the setting of an execution date.
(emphasis added). Clearly, although there are time restrictions on the first such application, there are none on any subsequent applications, most likely because § 1086 makes it plain second applications cannot contain anything which could have been raised in the first application; and because subsection B of § 1001.1 makes it plain the filing of a second petition does not prevent an execution date from being set even if a second petition is filed.
This lack of a time restriction strikes me as a grave oversight; however, it the province of the Legislature, not this Court, to set a “statute of limitations” barring second and subsequent post-conviction applications.
Having said that, I believe it would be possible in some cases for a petitioner to sit on a viable issue for a sufficiently long period of time to forfeit his right to a second application for post-conviction based on his own inaction. However, that situation is not before us. Petitioner asserts — and we have no reason to doubt it — that although the evidence was part of evidence discovered in another case, he did not discover its applicability to his case until Autumn 1993. Petitioner’s application for post-conviction relief was filed with the district court in January 1994. Absent specific statutory provisions to the contrary, two or three months is not an unreasonably long period of time.
It would have been helpful here for the district court to make a record dealing with the length of time between discovery of what Petitioner is calling newly discovered evidence and the time he filed his application. Should this arise in the future, it would be helpful for the district courts to detail to *532some degree when such evidence was discovered to allow such a determination to take place.