Eddings v. State , 1984 Okla. Crim. App. LEXIS 191 ( 1984 )

BUSSEY, Presiding Judge,

dissenting:

I must respectfully dissent. My dissent is predicated upon my belief that the majority in Johnson v. State, 665 P.2d 815 (Okl.Cr.1982), incorrectly interpreted our statute to prohibit the remanding of a case for a resentencing hearing when the only error occurred during the sentencing stage. The instant case would provide an excellent opportunity to expressly overrule Johnson, supra, and carry out the clear legislative intent. Moreover, I find nothing in the opinion of the U.S. Supreme Court that mandates automatic modification from death to life because of the age of the defendant.

I strongly recommend that the Oklahoma Legislature consider amending our death penalty statute in order to express its intent with unmistakable certainty. (Emphasis added) A select committee of the legislature could carefully study the recent decisions of the U.S. Supreme Court affirming the death penalty, in order to eliminate technical constructions which preclude its just enforcement. See for instance, Spaziano v. Florida, — U.S. -, 104 S.Ct. 3154, 82 L.Ed.2d 340, handed down on July 2, 1984, wherein a majority of the Supreme Court upheld the Florida capital punishment sentencing procedure.