The opinion
PARKS, Presiding Judge,
dissenting:
I respectfully dissent to the majority’s disposition of this case. In the appellees’ first proposition of error, appellate counsel argues, inter alia, that the 120-day program referred to in § 996.3(A) is unconstitutionally vague. I agree. “Undue vagueness in [a] statute will result in it being held unconstitutional, whether the uncertainty goes to the persons within the scope of the statute, the conduct which is forbidden, or the punishment which may be imposed.” W. LaFave & A. Scott, Jr., Substantive Criminal Law § 2.3(a), at 127 (1986) (footnotes omitted). For the following reasons, I find that the 120-day sentencing program of the DSPYA is unconstitutionally vague under Article II, § 7 of the Oklahoma Constitution which mandates that “[n]o person shall be deprived of ... liberty ... without due process of law.”
The 120-day “program” referred to in § 996.3(A) is defined only by a single sentence in 22 O.S.Supp.1987, § 996.2, instructing the Department of Corrections to establish procedures to carry out the provisions of the DSPYA. Section 996.3(A) provides that the sentencing court:
shall delay sentencing for a period of up to one hundred twenty (120) days after the plea of guilty or finding of guilt is entered and order the offender to the Delayed Sentencing Program for Young Adults under the custody of the Department of Corrections. For purposes of the Delayed Sentencing Program for Young Adults, the term ‘custody’ shall include probation or confinement. The court may initially commit the offender for either probation or confinement pending the completion of the Delayed Sentencing Program.
However, as Judge Hopper found, the Oklahoma Legislature established “no guidelines whatsoever” as to what it meant by the 120-day program. (Tr. 8) I agree with appellate counsel that “the trial court is commanded to force a defendant to attend a lengthy program which neither the trial court nor the defendant can describe. The four month duration of the program is a significant deprivation of a defendant’s liberty without sufficient notice to him of his responsibilities or possible requirements.” Brief of Appellee, at 3.
I cannot glean from the statutes what programs are required for offenders ordered to complete the so-called delayed sentencing program, nor can I determine the rights and responsibilities of either the State or the offender. See State ex rel. *868 Coats v. Johnson, 597 P.2d 328, 330 (Okl.Cr.1979). “For this Court to determine what it thinks would be an acceptable proferam], would not be a matter of interpretation of the statute but would rather be an exercise in judicial legislation. We cannot rewrite the statute on the pretext of construction.” Id. Defining crimes and fixing punishments is a legislative, not a judicial function. See Salyers v. State, 755 P.2d 97, 100 (Okl.Cr.1988); Hunter v. State, 375 P.2d 357, 362 (Okl.Cr.1962), overruled on other grounds, Broome v. State, 440 P.2d 761, 763 (Okl.Cr.1968); United States v. Evans, 333 U.S. 483, 487 , 68 S.Ct. 634, 636 , 92 L.Ed. 823 (1948). As strong as the presumption of validity may be, see Ex Parte Hunnicutt, 123 P. at 183, there are limits beyond which we cannot go in making certain what the Legislature “has left undefined or too vague for reasonable assurance of its meaning.” United States v. Evans, 333 U.S. at 486 , 68 S.Ct. at 636 . The Legislature’s failure to specify clear guidelines for what sentencing programs are required under § 996.3(A) “makes a task for us which at best could be only guesswork” and “[t]his is a task outside judicial interpretation.” Id. at 495, 68 S.Ct. at 641 .
“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453 , 59 S.Ct. 618, 619 , 83 L.Ed. 888 (1939) (footnote omitted). Due process requires explicit standards to prevent unfettered discretion in the administration of criminal justice. See Switzer v. City of Tulsa, 598 P.2d 247, 248 (Okl.Cr.1979). “Statutes which create and provide penalties,for criminal offenders should be sufficiently explicit so persons of common intelligence may understand their provisions and so that their meaning does not require speculation. Id. Accordingly, I would find that 22 O.S.Supp.1987, § 996.3(A), is void and without effect. See Okla. Const, art. II, § 7; Johnson, 597 P.2d at 330 .