performing non-deferential plenary review of defendant's claim raised in trial court concerning interpretation of prisoner escape statute at 21 0.S5.2001, § 443(A)
How later courts described this case
- performing non-deferential plenary review of defendant's claim raised in trial court concerning interpretation of prisoner escape statute at 21 0.S5.2001, § 443(A)
- recognizing the problems in finding "repeal by implication"
Written by the judges who cited it.
The opinion
LUMPKIN, Vice-Presiding Judge,
Dissents.
1 The opinion states the correct analysis to be applied in statutory construction, ie. "[wlhere the language of a statute is plain and unambiguous and the meaning clear and unmistakable, there is no room for construction, and no justification exists for interpretative devices to fabricate a different meaning", McBrain v. State, 1988 OK CR 261, 111 , 764 P.2d 905, 908 . However, it then proceeds to disregard that standard and the Oklahoma Legislature's response to our decision in McBrain.
T2 Following MceBrain the provisions of the statute, now 21 0.9$.2001, $ 448(A), were amended to provide the statutory language we are asked to apply to the facts in this particular case. The statutory language that was applicable in MceBrain actually stated "Any person having been imprisoned in a county or city jail awaiting charges on a felony offense ...". And, the Legislature's following amendment of that provision is a clear indication of their present intent regarding its application. As I read the opinion it appears the Court is inserting words into the statute that were not enacted by the Legislature and are done so to change the meaning of the statute to achieve the desired result based on the unique facts of this case. In fact, the word "felony" the Court is trying to reinsert was intentionally removed by the Legislature as it applies to this particular defendant.
13 As I read the "plain" language there are three classes of individuals subject to the penal provisions of this statute, ie. Any person (1) having been imprisoned in a county or city jail, or (2) detained in a juvenile detention facility awaiting charges on a felony offense, or (8) prisoner awaiting trial or having been sentenced on a felony charge to the custody of the Department of Corrections. What the Court is seeking to do is insert into the statute the prerequisite qualifier of "felony" into the first category of individuals when it does not exist in the statute. The Legislature revealed its legislative intent as to the second and third categories by purposefully making "awaiting charges on a felony offense" in the second category and "awaiting trial or having been sentenced on a felony charge to the custody of the Department of Corrections" in the third category a qualifier for those classes of offenders. But, the Legislature did not make "felony" a qualifier to those individuals "imprisoned in a county or city jail" in the first category. Those categories must be read in the disjunctive as the Legislature enacted them by the placement of the "or" between the classes of offenders and the specific insertion of "felony" where it was to apply to that class of offender. There is nothing to surmise or discern as to intent in this statute because it is clear and unambiguous when the plain language is read in appropriate context.
T4 Now, is it harsh for an individual who has been imprisoned for failure to pay fines and costs in a misdemeanor case to be convicted of a felony for escaping from the county jail? Maybe so, maybe not, but that is not the issue before this Court. The sole issue is the application of the language of the lawfully enacted statute by the Oklahoma Legislature. If application of their public policy is deemed too harsh, the proper procedure is to go back to the governmental body that enacts public policy, the Legislature, and have *209 it changed. We do not attempt to rewrite the statute to deal with what members of the Court deem to be a harsh treatment in a particular case.
T5 In addition, the Court does not even discuss the provisions of 21 0.98.2001, § 444(B) which states "Any person who escapes or attempts to escape after being lawfully arrested or detained for custody for a misdemeanor offense shall be guilty of a misdemeanor". Regardless, the Court's mea culpa regarding creating past problems by its errant language in the Smith decision should be taken to heart as it seeks to rewrite the plain language of this statute and disregard what the history of the evolution of this statutory language reveals is clear Legislative intent to include this class of offender within the application of this escape statute. For these reasons I must dissent. Hopefully, the Oklahoma Legislature will onee again address this issue and use clear enough language to require this Court to adhere to the Legislative intent.