Christopher v. Circle K Convenience Stores, Inc. , 937 P.2d 77 ( 1997 )

OP ALA, Justice,

concurring.

I concur in the court’s decision that affirms the summary judgment.

Statutory recordkeeping regime for civil cases differs from its criminal counterpart. Proof of judicial acts that took place in civil litigation must be made by a memorial (journal entry) signed by the judge and filed in the case.¹ That requirement does not rigidly extend to criminal prosecutions. In the latter category the occurrence of rulings in the course of judicial proceedings may be proved in a variety of ways.² The magistrate’s decision to bind over a felony defendant for trial may be established by (1) a certified copy of the court’s minute that shows the judge’s ruling;³ (2) a signed endorsement of his ruling upon a court-filed document; or (3) a court reporter’s transcript- of the ruling made at the preliminary hearing. The last of these options was used in this case. Neither probative failure nor even a deficiency resulted from the mode of proof adopted by the defendant'for the evidentiary material used in the summary judgment process.

Dor the first time on rehearing it is argued that “it would be a denial of due process” for this court to hold that this plaintiff may be barred from prosecuting his claim by the probable cause finding made at the preliminary hearing of the criminal proceeding. We are urged that, absent a right to appeal, one cannot be said to have had the requisite opportunity fully and fairly to litigate an issue. That opportunity is a sine qua non of issue preclusion.⁴

Because this challenge to the application of issue preclusion was not interposed until rehearing, it was not timely raised and must be saved for another day.⁵

1 . Depuy v. Hoeme, Okl., 775 P.2d 1339, 1342-1343 (1989). The signed and filed memorial may but need not be shown to have been entered on the court's journal record. Cumby v. State ex rel. Vinzant, Okla., 468 P.2d 490, 492 (1970).

2 . The pertinent terms of 22 O.S.Supp.1993 § 977 are:

"A. When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action: 1st. The indictment and a copy of the minutes of the plea or demurrer.

2nd. A copy of the minutes of the trial.

3rd. The charges given or refused, and the endorsements, if any, thereon; and,

4th. A copy of the judgment, which shall include a notation of the date of birth of the defendant and the social security number of the defendant.

B. The court shall obtain the date of birth of the defendant and the social security number of the defendant." (Emphasis supplied.)

3 .The clerk’s minutes of the trial are a part of the criminal record. Humphrey v. State, 3 Okl.Cr. 504, 106 P. 978 (syl.5)(1940). Appellate review of a criminal judgment roll includes the indictment or information, the trial court’s minutes of the plea, and the judgment and sentence. Camplain v. State, Okl.Cr. 362 P.2d 464, 466 (1961). See also Scott v. State, 85 Okl.Cr. 213, 186 P.2d 336, 338 (syl.10) (1947); Carrv. State, 91 Okl.Cr. 94, 216 P.2d 333, 340 (1950).

4 . Veiser v. Armstrong, Okl., 688 P.2d 796, 800 (1994). Carris v. John R. Thomas & Associates., P.C., Okl., 896 P.2d 522, 529 n. 17 (1995).

5 . Brown v. State Election Bd., Okl., 369 P.2d 140, 151 (1962); Hope v. Peck, 38 Okl. 531, 134 P. 33 (1913).