Tigerv.State

Court of Criminal Appeals of OklahomaOct 11, 1995
1995 OK CR 59 (Okla. Crim. App. 1995)
1995 OK CR 59907 P.2d 1075

No. C-91-973.

October 11, 1995.

Petition for review from the District Court, Mayes County.


ORDER DENYING REHEARING

The Court issued an Order Granting Writ of Certiorari on June 23, 1995, 900 P.2d 406. The order vacated Petitioner's judgment and sentence and remanded the case to the trial court for further proceedings. Mandate was issued on July 17, 1995. On August 16, 1995, the Court issued a Correction Order, which affixed the dissent of Judge Gary L. Lumpkin to the June 23, 1995. The June 23, 1995 order inadvertently omitted Judge Lumpkin's dissent.

Rule 3.14(A) of the Rules of the Court of Criminal Appeals states in relevant part:

A petition for rehearing, unless otherwise ordered by this Court, shall be made by the attorney of record, and filed with the Clerk within twenty (20) days from the date' on which the opinion in the cause was filed.

The State did not file its Petition for rehearing until September 5, 1995, well after the twenty day window had been closed. The State alleges that the June 23 order was not a "complete opinion," and that it cannot be considered to have been filed until August 16, 1995. Rule 3.14(D) states:

If a petition for rehearing is not filed with twenty (20) days, the decision shall be final.

The June 23, 1995 Order Granting Certiorari became final because no petition for rehearing was filed.

The Rules provide that "[t]he mandate shall not be recalled, nor stayed pending an appeal to any other court, nor shall bail be allowed by this Court pending appeal from a final decision of this Court, unless a majority of the Court, for good cause shown, recalls or stays the mandate." Rule 3.15(B). The State has failed to show good cause for recalling the mandate, and recalling the mandate would prejudice the Petitioner. We therefore deny the petition for rehearing.

IT IS SO ORDERED.

/s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Vice-Presiding Judge

/s/ James F. Lane JAMES F. LANE, Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge