McWilliams v. State ( 1989 )

LUMPKIN, Judge,

dissenting.

I respectfully dissent to the Court’s determination that the conviction of Appellant must be reversed and remanded for a new trial.

The Court finds that “[Sjection 11 of Title 21 mandates that a crime be brought under specific statutory provisions rather than more general codifications”. However, 21 O.S.1981, § 11 relates to provisions in other chapters of the laws of this state, i.e. penal provisions not contained in Title 21, the Oklahoma Penal Code. Section 11 goes further and states in the second sentence, “But an act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, except that in cases specified in §§ 51 and 54, the punishments therein prescribed are substituted for those prescribed for a first offense, but in no case can he be punished under more than one; ...” (emphasis added). Both of the statutory provisions addressed in this case are contained in Title 21, The Oklahoma Penal Code. The provisions of 21 O.S.1981, § 11 allow election by the prosecutor under which statute the charges will be filed and prosecuted. Krause v. State, 75 Okl.Cr. 381, 132 P.2d 179, 181 (1942). In fact, the prosecutor has the sole authority to decide under which statute to file charges. Dangerfield v. State, 742 P.2d 573, 574 (Okl.Cr.1987), Wolfenbarger v. State, 710 P.2d 114, 115 (Okl.Cr.1985). I do agree with the Court that the Appellant could have been prosecuted, .under the provisions of 21 O.S.1981, § 434. However, pursuant to the above cited authority, the prosecutor is vested with the right to elect under which statute the charges are to be prosecuted. Therefore, the conviction should be AFFIRMED.