ORDER GRANTING PETITION FOR WRIT OF
The State of Oklahoma, Petitioner, has filed a petition for
writ of prohibition, or in the alternative, writ of mandamus,
asking this Court to prohibit the Respondent, the Honorable
Stephen Kistler, Associate District Judge, from enforcing his
order requiring the State to dismiss one count of either
Burglary in the First Degree, or Robbery With a Firearm and
proceed to trial on only one charge in Case No. CF-2016-364
in the District Court of Payne County.
On May 19, 2016, the defendant was charged in Case No.
CF-2016-364 with Count 1: Robbery With a Firearm; and Count
2: Burglary in the First Degree. The preliminary hearing was
held on December 16, 2016, and the defendant was bound over
for trial on both charges. The facts of this case are
basically that the defendant broke and entered a dwelling
house and, while inside, used a firearm to rob the occupant.
On March 1, 2017, the defendant filed a motion to dismiss
Count 2. The defendant argued he could not be punished for
Count 2, pursuant to 21 O.S.2011, § 11 (A) and
Lawson v. State, 1971 OK CR 188, 484 P.2d 900,
because Count 2 involved the same criminal act or omission as
Count 1. On March 16, 2017, the State filed its response
claiming that Robbery With a Firearm and Burglary in the
First Degree are separate crimes that can both be punished in
this case. The State argued the Lawson decision can
be distinguished from this case as being inconsistent with
more recent decisions issued by this Court. On May 17, 2017,
Judge Kistler issued his order accepting the defendant's
arguments and ordering the State "based upon Lawson
v. State, 1971 OK CR 188 and 22 [sic] O.S. §
11" to dismiss one of the two counts charged in this
case and elect which count to proceed upon at trial.
Although Lawson has never been expressly overturned,
the analysis used to apply Section 11 of Title 21 is now
clearly different than any analysis used in Lawson.
Decisions issued by this Court subsequent to Lawson
have apparently distinguished or even effectively overturned
Lawson was appealing to this Court from his conviction for
the crime of Burglary in the First Degree and his sentence of
twenty years imprisonment. Lawson, 1971 OK CR 188,
¶ 2, 484 P.2d at 901. "[H]e was convicted under the
same facts, circumstances and with the same evidence for the
crime of 'Robbery With Firearms' for which he was
earlier convicted." Id. Lawson's victim was
at his home when he was awakened by a noise in the hallway.
Lawson, 1971 OK CR 188, ¶ 4, 484 P.2d at 901.
When the victim switched on the light, he saw Lawson dressed
in black attire, holding a gun pointed at him. Id.
Lawson bound and gagged the victim and then started rummaging
through the house. Id. A complete inventory of the
items Lawson stole from the victim's house was later
prepared. Lawson, 1971 OK CR 188, ¶ 5, 484 P.2d
at 902. This Court determined that Section 11 of Title 21
prevents multiple punishments "for several crimes
committed during one criminal transaction."
Lawson, 1971 OK CR 188, ¶ 6, 484 P.2d at 902.
This Court found that Lawson's acts were set on foot for
the single purpose of committing a burglary, but in
fulfilling that purpose, he also committed armed robbery.
Id. This Court also found that Lawson's First
Degree Burglary and Robbery With Firearms charges were one
single transaction based upon the same facts and the same
evidence. Lawson, 1971 OK CR 188, ¶¶ 9,
12, 484 P.2d at 903. Because Lawson had already been
convicted of and was undergoing punishment for Robbery With
Firearms, this Court reversed and remanded Lawson's First
Degree Burglary conviction and sentence with instructions to
dismiss. Lawson, 1971 OK CR 188, ¶ 13, 484 P.2d
In 1980, this Court specifically held that Section 11 of
Title 21 was not violated by convicting a defendant of one
count of Burglary in the First Degree, two counts of Rape in
the First Degree, two counts of Sodomy, and one count of
Unauthorized Use of a Motor Vehicle, when the defendant broke
into a residence, raped and sodomized the two female
residents inside, and then took the keys and left in one of
the victim's car. Ziegler v. State, 1980 OK CR
23, ¶¶ 1-3, 610 P.2d 251, 252-53. This Court found
that the crime of burglary is complete upon entry; that it
was a separate and distinct act from each of the other
crimes; and that each crime had separate and distinct
elements that did not merge or overlap into the proof of any
of the other crimes. Ziegler, 1980 OK CR 23,
¶¶ 9-10, 610 P.2d at 253-54. The Ziegler
decision did not address Lawson, and thus obviously
did not distinguish or overturn it.
In 1999, this Court clarified the proper analysis to be used
in determining whether Section 11 of Title 21 has been
violated. Davis v. State, 1999 OK CR 48, 993 P.2d
124. In Davis, the defendant was convicted of
Larceny from a House (count 1), Assault with a Dangerous
Weapon (count 2), and Larceny of an Automobile (count 3). The
defendant argued that his convictions for all three counts
violated the provisions of Section 11. This Court
specifically rejected tests that expand the Section 11
prohibition to crimes which are a mere means to some other
ultimate objective, or part of some primary offense.
Davis, 1999 OK CR 48, ¶¶ 10, 11, 993 P.2d
at 126. This Court held that the proper analysis of a Section
11 claim focuses on the relationship between the crimes.
Davis, 1999 OK CR 48, ¶ 13, 993 P.2d at 126;
see also Sanders v. State, 2015 OK CR 11,
358 P.3d 280 (possession of one firearm cannot be
criminalized as both felon in possession and knowingly
concealing stolen property); Head v. State, 2006 OK
CR 44, 146 P.3d 1141 (possession of crack cocaine and
possession of drug paraphernalia are separate criminal acts);
Hale v. State, 1995 OK CR 7, 888 P.2d 1027 (one act
of intercourse cannot be criminalized as both rape and
incest). This Court found Davis' crimes were a series of
separate crimes which are not prohibited by Section 11, even
if they tangentially relate to each other or are committed
during a continuing course of conduct. Davis, 1999
OK CR 48, ¶¶ 7, 13, 993 P.2d at 126, 127.
Section 11 of Title 21 provides that "an act or omission
which is made punishable in different ways by different
provisions of this title may be punished under any of such
provisions, ... but in no case can a criminal act or omission
be punished under more than one section of law; and an
acquittal or conviction and sentence under one section of
law, bars the prosecution for the same act or omission under
any other section of law." 21 O.S.2011, § 11 (A).
The prohibition of punishment or prosecution in Section 11
has always applied to "a criminal act or omission."
Id. In this case, the defendant's breaking and
entering of a dwelling house is "a criminal act or
omission" that has been charged as Burglary in the First
Degree. The defendant's use of a firearm to rob an
occupant inside the dwelling house is "a criminal act or
omission" that has been charged as Robbery With a
Firearm. Section 11 of Title 21 has not and does not prohibit
the prosecution of or punishment for separate and distinct
criminal acts or omissions as charged in this case.
Id. While Lawson was implicitly overruled
in Davis, we take this opportunity to explicitly
overrule Lawson to ensure clarity for the District
Courts in analyzing Section 11.
Before a writ of prohibition will issue, Petitioners have the
burden of establishing (1) a court, officer or person has or
is about to exercise judicial or quasi-judicial power; (2)
the exercise of said power is unauthorized by law; and (3)
the exercise of said power will result in injury for which
there is no other adequate remedy. Rule 10.6(A), Rules of
the Oklahoma Court of Criminal Appeals, Title 22, Ch.18,
App. (2017). The District Court has exercised judicial power
by ordering the State to dismiss one of the charges in this
case based upon Section 11 of Title 21 and Lawson.
Id. As addressed above, the order to dismiss one of
the charges in this case is not required or authorized by
law. Id. The District Court's order to dismiss
one of the charges in this case will result in injury for
which the State has no other adequate remedy. Id.;
see also 22 O.S.2011, § 1053.
Therefore, the petition for writ of prohibition asking this
Court to prohibit Judge Kistler from enforcing his order
requiring the State to dismiss one count of either Burglary
in the First Degree, or Robbery With a Firearm and proceed to
trial on only one charge in Case No. CF-2016-364 in the
District Court of Payne County should be, and is hereby,
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 25th day of
L. LUMPKIN, Presiding Judge
B. LEWIS, Vice Presiding ...