# Fontenot v. State > Court of Criminal Appeals of Oklahoma · June 8, 1994 · 65 O.B.A.J. 2066 URL: https://www.frixlaw.com/law-library/cases/9633032 ## Case - **Full name:** Karl Allen FONTENOT, Appellant, v. the STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** June 8, 1994 - **Citations:** 65 O.B.A.J. 2066; 881 P.2d 69; 1994 OK CR 42; 1994 Okla. Crim. App. LEXIS 46; 1994 WL 249821 - **Precedential status:** Published - **Opinion:** Concurring in part by Lumpkin - **Judges:** Johnson, Lane, Strubhar, Lumpkin, Chapel - **Cited by:** 71 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9633032 ## How later opinions describe it (automated extraction) - noting that this instruction allowed the jury to consider "all circumstances surrounding the homicidal act in determining whether [defendant] had the requisite intent to kill" ## Opinion text LUMPKIN, Presiding Judge, concurring in part/dissenting in part: I concur with the Court’s affirming Appellant’s conviction. The Court’s excellent analysis in determining the standard discussed in Opper v. United States, 348 U.S. 84 , 75 S.Ct. 158 , 99 L.Ed. 101 (1954) is well taken. The adoption of this more practical approach standard should eliminate the aberrations found in cases such as Thornburg v. State, 815 P.2d 186 (Okl.Cr.1991), which I believe to be overruled by this decision. However, I cannot agree with the result reached in remanding for resentencing based *87 on Hain v. State, 852 P.2d 744 (Okl.Cr.1993) and Salazar v. State, 852 P.2d 729 (Okl.Cr.1993). In adopting that rationale to this set of facts, the Court has gone a step beyond what was even reasonably foreseeable. I shall not repeat why I believe the underlying premise is faulty here; rather, I stand on my dissents in Hain and Salazar . However, I am forced to write here because this goes beyond mere stare decisis, as the facts amply demonstrate. The victim was killed in April 1984. Appellant was tried in September 1985. This Court reversed in July 1987. The life without parole provision became effective November 1987. Appellant was retried in June 1988. As a result, this Court seeks to remand once again because a new provision of law went into effect not between the time of the act’s commission and the time of trial, but between trials. Stare decisis is one thing; but following it here would be in direct contravention of the law. This ruling ignores the changes in 21 O.S.Supp.1993, § 701.10a, dealing with remanding for sentencing. In the new version, the Legislature clarified what should have been obvious, giving the jury the option of choosing any sentence “authorized by law at the time of the commission of the crime.” 21 O.S.Supp.1993, § 701.10a(l) (emphasis added). The provisions are specifically intended to apply retroactively. 21 O.S.Supp.1993, § 701.10a(5) This provision became effective June 7, 1993. This Court’s opinion comes down after that time. It should therefore logically control over this Court’s Salazar ruling, as it is a clear indication of the Legislature that it disagreed with this Court’s pronouncements. The Court in this decision exceeds even what could have been anticipated in allowing an appellant to latch on to the vestiges of Hain and Salazar . The benefit of foreseeability should be given to the State as well as a defendant; and this case should be a stopping point for reaching back into the past for purposes of attaching a decision upon which an appellant has no clear right to depend. Therefore, I must respectfully dissent to that portion of the opinion remanding for a new sentencing hearing. ORDER DENYING PETITION FOR REHEARING AND DIRECTING ISSUANCE OF MANDATE Karl Allen Fontenot was tried by a jury and convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.Supp. 1982, § 701.7 (Count III), Kidnapping in violation of 21 O.S.1981, § 741 (Count II), and Robbery with a Dangerous Weapon in violation of 21 O.S.Supp.1982, § 801 (Count I), in the District Court of Hughes County, Case No. CRF-88^3. In accordance with the jury’s recommendation, the Honorable Donald E. Powers sentenced Fontenot to twenty years imprisonment for Count I, ten years imprisonment for Count II, and death for Count III. In a June 8, 1994 published opinion, this Court affirmed Fontenot’s convictions on all three counts, but remanded the murder conviction for a new sentencing hearing at which Fontenot was to receive the “life without parole” jury instruction. Fontenot is now before the Court on a Petition for Rehearing, which is governed by Rule 3.14, Rules of the Court of Criminal Appeals, 22 O.S.Supp. 1993, Ch. 18, App. According to Rule 3.14, a Petition for Rehearing shall not be filed as a matter of course, but only for two reasons: (1) That some question decisive of the ease and duly submitted by the attorney of record has been overlooked by the Court, or (2) That the decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument. The sole proposition Fontenot raises in his Petition for Rehearing does not meet the criteria set forth in Rule 3.14 and will not be addressed. IT IS THEREFORE THE ORDER OF THIS COURT that Fontenot’s Petition for Rehearing be DENIED. The Clerk of the Court is directed to issue the mandate forthwith. *88 IT IS SO ORDERED. WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 30th day of September, 1994. /s/ Gary L. Lumpkin GARY L. LUMPKIN, Presiding Judge /s/ Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge /s/ James F. Lane JAMES F. LANE, Judge /s/ Charles S. Chapel CHARLES S. CHAPEL, Judge /s/ Reta M. Strubhar RETA M. STRUBHAR, Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9633032. Public record. Not legal advice.