# Nesbitt v. State

> Court of Criminal Appeals of Oklahoma · June 29, 2011 · 255 P.3d 435

URL: https://www.frixlaw.com/law-library/cases/9778967

## Case

- **Full name:** Nesbitt v. State
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** June 29, 2011
- **Citations:** 255 P.3d 435; 2011 OK CR 19; 2011 Okla. Crim. App. LEXIS 20; 2011 WL 2674906
- **Precedential status:** Published
- **Opinion:** Concurring in part by Lumpkin
- **Judges:** Johnson, Lewis, Smith, Lumpkin
- **Cited by:** 3 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/9778967

## Opinion text

LUMPKIN, Judge:
Concur in part/dissent in part.
{1 I concur in the dismissal of the attempted appeal in this matter. However, I must dissent to the dicta that purports to be a holding in this case.
2 The Court's opinion tragically takes on an incongruous posture when it first seeks to dismiss the attempted appeal but then goes ahead to proffer an analysis and opinion in the now dismissed attempted appeal,. This Court has historically made emphatic statements that this Court cannot, should not, issue advisory opinions. See Murphy v. State, 2006 OK CR 3, ¶ 1 , 127 P.3d 1158 ("this Court does not issue advisory opinions"); Canady v. Reynolds, 1994 OK CR 54, ¶ 9 , 880 P.2d 391, 394 ; ("this Court cannot otherwise issue advisory opinions"); Matter of L.N., 1980 OK CR 72 , ¶ 4, 617 P.2d 239 , 240 ("An advisory opinion does not fall within the Court's original or statutory jurisdiction; neither does it come within its appellate review. To offer advice in the form of an opinion would be to interfere with the responsibility of the trial court to exercise the powers confided to it"). I cannot join in the process of issuing advisory opinions which violate our rules and precedent.
T 3 While the analysis might be correct, in this posture it has no more legal weight than a law review article. This Court must remember and discipline itself to function in accordance with its constitutional mandate to be the court of last resort in the adjudication of appeals in criminal cases. Onee the Court decides to dismiss an attempted appeal, that ends the appeal. The Court is not given the carte blanche authority to just pontificate on what the Court believes the law should be. That type of action is dangerous and without appellate discipline. Therefore, I must to dissent to that portion of the opinion which is dicta.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778967. Public record. Not legal advice.