Dean v. State , 1989 Okla. Crim. App. LEXIS 40 ( 1989 )

PARKS, Presiding Judge,

concurring in part and dissenting in part:

The majority affirms appellant’s conviction, but modifies his sentence, finding it was improper for the trial judge to grant a new trial on sentencing. The majority distinguishes Nipps v. State, 626 P.2d 1349 (Okla.Crim.App.1981), by holding it allows resentencing only when a statute is held unconstitutional. Such a position is contrary to prior case law where resentencing was ordered although the constitutionality of a statute was not at issue. See, e.g., Moore v. State, 736 P.2d 996, 999 (Okla.Crim.App.1987); Delfrate v. State, 732 P.2d 900, 902 (Okla.Crim.App.1987); Johnston v. State, 673 P.2d 844, 850 (Okla.Crim.App.1983); Castor v. State, 499 P.2d 948, 953 (Okla.Crim.App.1972).

“The appellant has been found guilty by a jury and that finding of guilt has been reviewed by this Court and upheld. There is no need to repeat the entire trial.” Nipps, 626 P.2d at 1350-51. The Oklahoma Court of Criminal Appeals “may, if necessary or proper, order a new trial.” 22 O.S.1981, § 1066. A “new trial” includes a guilt-innocence and sentencing stage. Since we have the authority to grant an entire new trial, we have the authority to grant a new trial on sentencing only in furtherance of the public’s right to expediency in the orderly administration of criminal justice. Such an interpretation of Section 1066 is consistent with the above cited cases, which have not been overruled by the majority opinion. I would affirm the verdict reached by the jury during resen-tencing.

I am authorized to state that Judge BUS-SEY concurs in this opinion.