# Love v. State

> Court of Criminal Appeals of Oklahoma · June 30, 2009 · 217 P.3d 116

URL: https://www.frixlaw.com/law-library/cases/9797196

## Case

- **Full name:** Tommy Wayne LOVE, Appellant v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** June 30, 2009
- **Citations:** 217 P.3d 116; 2009 OK CR 20; 2009 Okla. Crim. App. LEXIS 19; 2009 WL 1856637
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumpkin
- **Judges:** Chapel, Johnson, Lewis, Lumpkin
- **Cited by:** 4 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/9797196

## How later opinions describe it (automated extraction)

- rejecting equal protection challenge

## Opinion text

LUMPKIN, JUDGE:
CONCUR IN
RESULT.
1 1 While I agree with the results reached by the Court, I disagree with some of the analysis and methodology.
T2 I continue to adhere to my analysis in Cannon v. State, 1995 OK CR 45 , 904 P.2d 89, ¶ 2 , 904 P.2d 89, 108 (Lumpkin Concur in Result) (citing Wainwright v. Witt, 469 U.S. 412, 422 , 105 S.Ct. 844, 851 , 83 L.Ed.2d 841 (1985)), that "while there are exceptions, statements in footnotes are generally regarded as dicta, having no precedential value." I believe the Court should be clear that its holding is shown as a holding in the body of an opinion and not left to surmise by a reader by placement in a footnote.
{3 Further, jury determination of punishment is strictly a statutory right. See 22 ©.8.2001, § 926.1. See also Romano v. State, 1993 OK CR 8 , ¶¶ 68 & 71, 847 P.2d 368, 384-385 (state constitution does not address the role of the jury in sentencing a defendant; the law and procedure to be followed in sentencing a defendant is set out in § 926 [now § 926.1]). Thus the language of the statute controls. See King v. State, 2008 OK CR 13, ¶ 7 , 182 P.3d 842, 844 (in order to give effect to the Legislature's expressed intentions we construe statutes using the plain and ordinary meaning of their language).
T4 The plain language of § 926.1 states that jury determination of punishment is a discretionary procedure that is only made mandatory if the defendant requests the jury to set the punishment. The statutory language indicates if a defendant fails to file a demand for jury sentencing, the trial judge has the option of tasking the jury to determine punishment or elect to set punishment himself or herself. This statute does not grant the State any standing to request or object to jury sentencing.
15 The majority opinion relies on previous decisions from this Court which have improperly meshed the constitutional right to a jury trial with the statutory right to sentencing. *120 The constitutional right to a jury trial, in which the defendant and the State equally share, is limited to the right to have a jury determination of guilt. See Okl. Const., Article II, Section 19. See also Romano, 1993 OK CR 8, ¶¶ 69-70 , 847 P.2d at 385 ; Guindon v. State, 1981 OK CR 47, ¶¶ 4-6 , 627 P.2d 449, 451 . The statutory option for jury sentencing is placed in the hands of the defendant and the trial judge, not the State, under § 926.1. Cases that merely state bald assertions of a right by the State without citation to authority cannot be authority for a principle of law. The statutory language controls. Therefore, I urge the Court to return to the basies of statutory construction and apply the plain language of the statute.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9797196. Public record. Not legal advice.