Smith v. State , 2013 Okla. Crim. App. LEXIS 13 ( 2013 )

LUMPKIN, Judge:

concur in results.

T 1 I concur in the affirmance of the judgment and sentence in this case. I write separately though to address certain issues.

4 2 In Proposition I, I concur in the finding that whether Appellant is "mentally retarded" has been decided but I disagree with the Court's reliance on the Law of the Case doctrine as supporting authority. The principles of res judicata and collateral estoppel govern criminal cases and we should not be venturing into civil law by adopting the Law of the Case doctrine, a judicially created doctrine used primarily in civil cases as an estoppel to relitigation of a fact determined as against the same parties. In criminal cases, defendants must be treated equally and consistently. The Law of the Case Doctrine is a more subjective test and its use gives the impression that some different standard applies. It is extremely important in the review of criminal eases that the Court be consistent and apply the law equally. The principles of res judicata and collateral es-toppel sufficiently support the trial court's ruling.

T3 In Proposition II, I agree with the interpretation of 22 0.98.2001, § 1175.5. I would even go a step further and recommend that the committee on the Oklahoma Uniform Jury Instruction-Criminal amend the uniform instructions to reflect this bifurcated procedure. This would ensure that future cases would be consistent in interpreting § 1175.5 as a bifurcated process.

T4 In Proposition 3, I would add that statutes, not courts, create rights of appeal and there is no constitutional right to appeal.