2002 OKCR 15 - Burleson v. Saffle

How this case has been cited

Cited by 9 later decisions — most recently February 2021

4 federal appellate · 4 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

LUMPKIN, Presiding Judge:

¶1dissents.

¶21 I dissent to the Court's decision that 21 O.S.Supp.1997, § 652(B) allows for multiple prosecutions. As I stated in my separate vote to Locke v. State, 943 P.2d 1090 (Okl.Cr.1997):

I concur in the results reached by the Court in this case. However, I do so based on an application of the statutory language contained in 21 O.S.Supp.1992, § 652(B). As the opinion notes "[this statute is limited by the act of using a vehicle to facilitate the intentional discharge of a firearm in a reckless manner". The focus of subsection B is on the use of a vehicle regardless of the number of persons whose safety was disregarded in the discharge of a weapon from the vehicle. Subsections A and B of Section 652 focus on the prohibited acts being committed on "another", ie the specific intent analysis in the Court's opinion. For that reason, separate charges may be filed and convie-tions affirmed under Subsection A and C for each individual vietim of the prohibited act. However, the operative language of Subsection B is the use of the vehicle to facilitate the intentional discharge of a weapon in conscious disregard for the safe*154ty of any other person or persons. Applying the plain language of the statute, only one conviction can be sustained for the use of the vehicle at that particular place at the same time. That is not to say a single charge under Subsection B could not be joined with multiple counts under other statutory provisions which provide for separate offenses when separate victims are involved.

¶3943 P.2d at 1097.

¶4T2 Locke is the only published case addressing the issue of multiple prosecutions under § 652(B). Therefore, it is the only decision binding on this Court. See Rule 3.5(C)(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1999). In determining that Locke was wrongly decided, the Court is ignoring established precedent in order to achieve a desired result in a particular case.

¶513 However, I recognize the decision in Locke was not specifically declared to be retroactive. Therefore, it cannot be applied to Appellant's case which was decided before Locke.