Stout v. State , 1987 Okla. Crim. App. LEXIS 338 ( 1987 )

Order Granting Attorney General’s Application to Vacate District Court Order Staying Execution of Sentence of Death.

On February 19, 1987, the Attorney General filed an application in this Court seeking to have the Caddo County District Court order vacating the execution order of this Court set aside in this appeal. On December 17, 1986, this Court set the execution date for Billy Gene Stout to be had on February 25,1987, after his appeal from denial of post-conviction relief was made from the district court and this Court affirmed that denial. On February 17, 1987, appellant filed a second post-conviction application in the Caddo County District Court. On February 19,1987, the post-conviction application was heard along with an application to stay the execution date set by this Court. The post-conviction application was denied, and that court purported to enter a Stay Order staying the execution date previously set by this Court. Now the Attorney General is moving to vacate the district court stay order. Appellant is seeking to justify the appeal and stay order under the provisions of 22 O.S.1981, § 1087.

NOW THEREFORE, after considering the Attorney General’s application and being sufficiently advised in the premises, this Court finds that the Post-Conviction Act, under which the district court’s stay order attempted to be justified also specifically provides that one post-conviction application is authorized to be filed under that Act. 22 O.S.1981, § 1086. Moreover, the authority to stay execution of an order under Section 1087, authorizes the district court to stay any order granting or denying post-conviction relief, but does not authorize that court to stay a sentence of death when the court has denied post-conviction relief. Therefore, this Court further finds that the application to vacate the district court order should be granted.

IT IS THEREFORE THE ORDER OF THIS COURT, that the Caddo County District Court Order staying the order of this Court setting the execution date for Billy Gene Stout shall be vacated and set aside. The execution date for Billy Gene Stout is to be had on February 25, 1987, unless further stayed by the Governor of Oklahoma, or a federal court having authority to enter a proper stay order.