Mathues v. State

LUMPKIN, Judge,

specially concurring:

I agree that under 21 O.S.1991, § 11 and our caselaw, the conviction for receiving proceeds related to a drug transaction must be reversed. I based this not only on our existing caselaw and Section 11, but also specific provisions in our statutes dealing with controlled dangerous substances. Specifically, I refer to 63 O.S.1991, § 2-409, which reads:

Any penalty imposed for violation of this article shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law.

This as a classic example of “expressio unius est exclusio alterius”: the mention of one thing in a statute implies exclusion of another. Canady v. Reynolds, 880 P.2d 391, 399 (Okl.Cr.1994); McCullick v. State, 682 P.2d 235, 236 (Okl.Cr.1984); State v. Smith, 539 P.2d 754, 757 (Okl.Cr.1975). The above language convinces me the Legislature considered, but rejected the possibility of additional criminal charges for violation of both acts; that they considered, but rejected, the idea of exempting these drug laws from the general provisions of 21 O.S.1991, § 11. One can draw the same conclusion from 63 O.S.1991, § 2-413, which prohibits a conviction in the courts of this State if a conviction has been obtained in federal court or the courts of another state.

In reaching this conclusion, I do not mean to imply there does not exist a set of facts under which a conviction under both provisions may be obtained. I merely agree that under the facts of this case, the second conviction cannot stand.