# Tate v. State

> Court of Criminal Appeals of Oklahoma · May 10, 1995 · 66 O.B.A.J. 1663

URL: https://www.frixlaw.com/law-library/cases/9852994

## Case

- **Full name:** Kenneth Don TATE, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** May 10, 1995
- **Citations:** 66 O.B.A.J. 1663; 896 P.2d 1182; 1995 OK CR 24; 1995 Okla. Crim. App. LEXIS 29; 1995 WL 271803
- **Precedential status:** Published
- **Opinion:** Concurring in part by Lumpkin
- **Judges:** Johnson, Lane, Chapel, Strubhar, Lumpkin
- **Cited by:** 25 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/9852994

## Opinion text

LUMPKIN, Judge,
concurring in part and dissenting in part:
I agree the judgments on all three counts should be affirmed, and agree the sentences on Counts II and III should be affirmed; however, I disagree the death sentence on Count I must be reversed and a new sentencing proceeding held.
I agree "with the Court’s denial of Appellant’s claim our competency statutes are unconstitutional based on our previous decision in Cooper v. State, 889 P.2d 293 , 66 OBJ 166, 170-171 (Okl.Cr.1995). A defendant’s incompetence to stand trial is not the same as his sanity at the time of the offense, which is a defense. Incompetence — the ability to understand the nature of the proceedings and consult with one’s attorney — is not a defense to the charges leveled against a defendant; rather, it is a bar to the continuation of criminal proceedings when properly raised.
I also wholeheartedly agree with the Court’s holding six new propositions of error filed in a supplemental brief are not properly before the Court. I also agree with the statement “there must be finality in the briefing process at some point in the appeals process.” ante at 1193. I am therefore somewhat puzzled as to why the Court first bars the propositions, then “[i]n any event” “reviewed appellant’s claim.” Id. The only possible answer is that the Court holds the propositions are barred, and the discussion following the holding is mere dicta. If that is the intention, I concur.
Finally, I recognize the Court is adhering to stare decisis in holding the death sentence must be reversed and remanded for a new sentencing hearing because the option of life without parole was not given to the jury; however, I continue to adhere to my philosophy the sentence options to be given are those which are in effect at the time the crime is committed. See Hain v. State, 852 P.2d 744, 753 (Okl.Cr.1993) (Lumpkin, P.J., concurring in part and dissenting in part); Salazar v. State, 852 P.2d 729, 741 (Okl.Cr.1993) (Lumpkin, P.J., concurring in part and dissenting in part).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9852994. Public record. Not legal advice.