925 P.2d 64 - Mathues v. State

JOHNSON, Presiding Judge,

¶1Specially concurring:

¶2I concur herein based upon stare decisis and further based upon the facts in this case. This is a clear case where there was one criminal act. Therefore, due to stare decisis the conviction while receiving or acquiring proceeds derived from illegal drug activity should be reversed and dismissed. I write specially just to continue my position that in the appropriate case, these cases are handled as the double jeopardy clause and not under the now super double jeopardy clause (22 O.S.1991, § 11).

LUMPKIN, Judge,

¶3specially concurring:

¶4I agree that under 21 O.S.1991, § 11 and our caselaw, the conviction for receiving proceeds related to a drug transaction must be reversed. I based this not only on our existing caselaw and Section 11, but also specific provisions in our statutes dealing with controlled dangerous substances. Specifically, I refer to 63 O.S.1991, § 2-409, which reads:

Any penalty imposed for violation of this article shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law.

¶5This as a classic example of “expressio unius est exclusio alterius”: the mention of one thing in a statute implies exclusion of another. Canady v. Reynolds, 880 P.2d 391, 399 (Okl.Cr.1994); McCullick v. State, 682 P.2d 235, 236 (Okl.Cr.1984); State v. Smith, 539 P.2d 754, 757 (Okl.Cr.1975). The above language convinces me the Legislature considered, but rejected the possibility of additional criminal charges for violation of both acts; that they considered, but rejected, the idea of exempting these drug laws from the general provisions of 21 O.S.1991, § 11. One can draw the same conclusion from 63 O.S.1991, § 2-413, which prohibits a conviction in the courts of this State if a conviction has been obtained in federal court or the courts of another state.

¶6In reaching this conclusion, I do not mean to imply there does not exist a set of facts under which a conviction under both provisions may be obtained. I merely agree that under the facts of this case, the second conviction cannot stand.