Roselle v. State

BRETT, Judge

(dissenting).

I am compelled to specifically dissent to this decision. On September 9, 1972, this Court dismissed the appeal from a direct contempt citation in Robinson v. State, Okl.Cr., 501 P.2d 215 , for similar reasons without explaining what is meant by a “formal judgment and sentence” in direct contempt proceedings. So far as I know. *1296 there is no printed form in the nature of a formal judgment and sentence for direct contempt proceedings. The text writers refer to “judgments or sentences” and “orders for committment”; and the cases which this Court has considered, in which the judgment and sentence was reported, indicate a typewritten statement of the facts upon which the citation was based, the finding, and the sentence imposed by the court. Consequently, I do not consider the rule stated in Baker v. State, supra, is necessarily applicable in these “special proceedings”.

While 21 O.S.1971, § 568, provides: “Whenever a person shall be imprisoned for contempt the substance of the offense shall be set forth in the order for his confinement, and made a matter of record in the court.”, the same statute has been applied in direct contempt proceedings when only a fine was imposed. See: Young v. State, Okl.Cr., 275 P.2d 358 (1954).

In the instant matter, the court minute was filed of record and it sets forth the substance of the facts which served as the basis for the citation, an opportunity for the contemnor to explain, the finding of guilty, and the judgment of a $100 fine. Also, that court minute was filed in the Honorable Trial Judge’s own handwriting. To my way of thinking, this constitutes a judgment and sentence upon citation for direct contempt of court; and is a “formal judgment and sentence”. In addition, a check with the Court Clerk for the District Court of Cleveland County reveals that no other printed, typed, or other form of order has been included in the file in that court’s case number C-71-524, other than the “Judges Trial Notes” referred to, and dated September 21, 1971. No doubt the trial judge considers that to be sufficient judgment and sentence to support his proceedings, or he would have prepared a more formal typewritten order.

Secondly, the majority decision is premised upon this Court’s 1948 decision in Ex parte Stephenson, supra, and fails to recognize the Oklahoma Supreme Court’s decision in Fulreader v. State, Okl., 408 P.2d 775 (1965), in which the following was recited :

“The law is well settled by prior decisions of this Court that proceedings for direct contempt are neither civil nor criminal in character but are sui generis

The proceedings in the instant matter are very similar to those found in Fulreader . Also, subsequent to the Supreme Court’s decision in Fulreader , this Court recited with approval the same rule of “sui generis” in Sullivan v. State, Okl.Cr., 419 P.2d 559 (1966); and Pate v. State, Okl.Cr., 429 P.2d 542 (1967). It follows therefore, if the proceedings are neither “civil nor criminal in character”, then the punishment therefor should not be classified as being either “misdemeanor” or “felony” in character.

Prior to this Court’s decisions in Sullivan v. State, supra, and Pate v. State, supra, the different classification of direct contempt proceedings existed; but since those decisions were rendered, both Courts have considered that a direct contempt appeal could be taken to either the Supreme Court, or to this Court. The majority decision in this case appears to be a reversion, back to the pre-existing condition of confusion, to which I do not subscribe. See: 4 Okl.Law Rev. 495, 1951, for a discussion on this aspect of direct contempt proceedings.

Lastly, I believe the discussion with reference to Cheff v. Schnackenberg, supra, is unnecessary for the reason direct contempt proceedings are summarily disposed of, and there is no requirement for a jury.

I respectfully dissent to this decision.