dissenting:
{1 The order correctly states "[the crux of this case is the appropriate use of the twenty-day rule [22 O.S.Supp.2000, 991b (A)]" The order also correctly recognizes that our task is to construe the plain, ordinary meaning of Section 991b(A), and to give effect to the expressed intention of the Legislature by making sure the twenty-day rule does not become meaningless and is not negated. However, the majority does not correctly analyze and interpret Section 991b(A) and the appropriate use of the twenty-day rule, nor have they correctly determined the intent of the Legislature. See eg. Scoft v. State, 734 P.2d 826 (Okl.Cr.1988). The majority has also not correctly analyzed the facts of this case.
T2 I urge the Oklahoma Legislature to amend Section 991b(A), and explain to the judges agreeing to this order its true intent, by stating this provision is not a statute of limitations and the remedy for a violation of the twenty-day rule is and always has been release from incarceration (or other deprivation of liberty). This remedy has always been restoration of the liberty interest enjoyed before the petition to revoke suspended sentence was filed. The amendment should specifically state the dismissal of a petition to revoke suspended sentence is without prejudice to re-filing the petition.
1 3 Section 991b(A) provides that a hearing on a petition to revoke suspended sentence must be held within twenty (20) days after the entry of the plea of not guilty to the petition. 22 0.S.Supp.2000, 991b (A). As noted by the majority, Section 991b(A) only refers to one opportunity to justify a petition to revoke a suspended sentence. Id. The majority finds Section 991b(A) "does not suggest the State may evade its responsibility to prove its case within twenty days by dismissal and re-filing, using the same charges as the basis for the revocation." However, Seetion 991b(A) also "does not suggest" that the petition cannot be refiled using the same charges as the basis for the revocation. 22 0.8.8upp.2000, 991b (A). In fact, nowhere does Section 991b(A) refer to a remedy for the probationer when the revocation hearing cannot be held within the twenty (20) day period. Id. Thus, the crux of this case is the appropriate use of the twenty-day rule, and the appropriate remedy for its violation.
T4 This Court has recognized that the twenty-day rule was enacted by the Oklahoma Legislature in response to this Court's decision in Woods v. State, 526 P.2d 944 (Okl.Cr.1974), and the decisions of the United States Supreme Court in Morrissey v. Brew*651er, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See Baker v. State, 927 P.2d 577, 581-83 (Okl.Cr.1996); Pickens v. State, 779 P.2d 596, 598 (Okl.Cr.1989). Those cases addressed the Due Process Clauses of the Oklahoma and United States Constitutions, and the mandates of due process required in proceedings to revoke probation and parole. Id. Therefore, the twenty day rule was enacted and designed to protect due process rights. Id.
T5 The Due Process Clauses of both the Oklahoma and United States Constitutions provide that no person shall "be deprived of life, liberty, or property, without due process of law." Okla. Const. Art. 2, § 7; U.S. Const. amend. V. By its plain language, when a person's due process rights are violated, the life, liberty, or property of which the person was deprived should be restored. That is exactly what happened in this case, thus Petitioner received all the relief to which he was entitled.
T6 On January 3, 2000, when the twenty day rule was going to be violated, Petitioner, who had already been released from incarceration on bond, had his bond exonerated. Thus, he was restored to the probationary liberty interest he enjoyed before the petition to revoke suspended sentence was filed. Also, Petitioner suffered no deprivation of liberty or any other hardship during the "five months [which] passed between the last scheduled hearing date and the time the State first arraigned Petitioner on the charges which form the basis for the current application to revoke his suspended sentence." See majority op. 17. Yet, the majority does not seem to like what happened during this period.
T7 The majority apparently doesn't think that the release from incarceration, the exoneration of bond, and the restoration of a liberty interest, is very important or much of a remedy. The majority believes that if the only remedy available to Petitioner is getting back the liberty interest he enjoyed before the petition to revoke suspended sentence was filed, then Section 991b(A) is "a vain thing" that is "superfluous or useless", and its terms are "meaningless", "negated", and © have "no purpose." See majority op. M1 6-7. I believe most people in this state, this country, and especially this world, would disagree, believing that the release from incarceration and restoration of a liberty interest would be one of the best remedies available and one of the most important rights we can possess.
8 Dismissal with prejudice of a petition to revoke suspended sentence has been held proper under fundamental fairness and due process considerations, but only after five (5) years elapsed between the filing of the petition and the revocation hearing, when the whereabouts of the probationer was readily known. Cheadle v. State, 762 P.2d 995 (Okl.Cr.1988). Therefore, the majority is obviously not using such due process considerations in its application of the twenty day rule, but is trying to turn the twenty day rule into some type of statute of limitations, which prohibits further 'prosecution' after the period has expired.1 Clearly, the Oklahoma Legislature would never have set a statute of limitations at such a short period as twenty (20) days. The Oklahoma Legislature would also never have intended probationers to escape any and all responsibility for their probation violations, if the revocation hearing could not be held with the twenty day period, due to weather or other factors beyond the control of the parties. +
1 9 That brings us to the facts of this case, and the majority's analysis thereof. The majority criticizes the State for dismissing the petition to revoke on the nineteenth day, January 3, 2001, "as it would have been nearly impossible to locate the witnesses and hold a revocation hearing within the remain*652ing twenty-four hour time period that remained in the twenty days." Majority op. at T7; Response at 4. The majority finds "[this suggests the State never intended to hold Petitioner's hearing within the limits of the twenty-day rule." Majority op. at 17. The majority (and the Petitioner) have carefully ignored or omitted other facts contained in the Respondent's response, and in the Docket of the District Court.
110 Petitioner's revocation hearing was originally scheduled on December 27, 2000. This suggests the State had its witnesses located for the December 27, 2000, court date, and did intend to hold Petitioner's hearing within the limits of the twenty-day rule. Petitioner's revocation hearing could not be held on December 27, 2000, because the Oklahoma County District Court was closed due to snow and inclement weather. The hearing was not re-scheduled to January 8, 2001, until December 28, 2000. It is not unfathomable to find that "it would have been nearly impossible" to re-locate and reschedule witnesses for the revocation hearing with only two (2) business-day's notice of the change of the date of the revocation hearing.
11 It seems to me that the re-scheduling of the hearing to January 8, 2001, was a commendable attempt by the State and the District Court to still hold Petitioner's revocation hearing within the twenty day period. However, the attempt apparently could not be accomplished, and Petitioner would not cooperate by agreeing to waive the twenty day rule under the cireumstances. It seems to me Petitioner is trying to take advantage of the closing of the Oklahoma County District Court to escape any and all responsibility for his probation violations. It is unfortunate the majority has allowed him to do so.
112 I am authorized to state Judge LILE joins in this dissent.
. The majority cannot use a double jeopardy analysis to support its holding that Petitioner's application to revoke suspended sentence should be dismissed with prejudice because double jeopardy does not attach and is not applicable to proceedings to revoke a suspended sentence. Eg. Marutzky v. State, 514 P.2d 430 (Okl.Cr. 1973); Degraffenreid v. State, 599 P.2d 1107 (Okl.Cr.1979). Moreover, Petitioner has not been 'acquitted', 'previously convicted', or 'previously punished' on the application to revoke his suspended sentence. Eg. Marutzky, 514 P.2d at 431.