ORDER SUPPLEMENTING 1998 OK CR 74 WITH DISSENTING OPINION
¶1 On December 31, 1998, this Court handed down for publication its opinion in the above-referenced appeal (public domain cite 1998 OK CR 74). It is hereby ordered that said opinion shall be supplemented with the attached dissent by Judge Lumpkin. The dissenting opinion shall be published along with 1998 OK CR 74. Judge Lumpkin's vote in 1998 OK CR 74 is hereby shown as a "DISSENT".
¶2 IT IS SO ORDERED.
¶3 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 9th day of February, 1999.
/s/ Reta M. Strubhar
RETA M. STRUBHAR, Presiding Judge
/s/ Gary L. Lumpkin
GARY L. LUMPKIN, Vice Presiding Judge
/s/ Charles A. Johnson
CHARLES A. JOHNSON, Judge
/s/ Charles S. Chapel
CHARLES S. CHAPEL, Judge
/s/ Steve Lile
STEVE LILE, Judge
ATTEST:
/s/James Patterson
Clerk
LUMPKIN, JUDGE: DISSENT
¶1 I must respectfully dissent to the Court's decision in the above-styled case, together with the publication of the case. The Court has disregarded some very basic rules of appellate review.
¶2 As set out in Article 7, § 4, of the Oklahoma Constitution, "the Court of Criminal Appeals shall have exclusive appellate jurisdiction in criminal cases". Appellate jurisdiction is that power and jurisdiction to review and correct those proceedings of inferior courts brought for determination in the manner provided by law. Carder v. Court of Criminal Appeals, 595 P.2d 416 (Okl.1978); State v. Cole, 4 Okl.Cr. 25, 109 P. 736 (1910). As a result of this "appellate" jurisdiction, this Court is tasked with the responsibility of reviewing actions in the District Court to determine if the facts developed therein support the District Court's decision under the law.
¶3 This Court is not a fact-finder. We cannot create facts on our own. Therefore, the opinion mischaracterizes this Court's role when it states "[m]ixed questions of law and fact are treated as questions of law on appeal, and so we review this issue de novo." Black's Law Dictionary defines the term de novo as "anew; afresh; a second time." Even if such review was allowed under our "appellate jurisdiction," this opinion clearly goes outside the scope of merely reviewing anew the law and facts presented at the trial in this matter. Rather, the Court, in this opinion, seeks to create its own facts which have not been presented to the District Court, nor to this Court.
¶4 Contrary to the opinion's position regarding carte blanche de novo review, our jurisprudence reveals this Court has previously reviewed mixed questions of law and fact based upon an abuse of discretion standard, asking whether the trial court's findings of fact are supported by the record. See e.g. Harris v. State, 261 P.2d 909, 915 (Okl.Cr.1953)(competency of witness is a mixed question of law and fact to be determined by the trial court upon an examination of the witness; only a manifest abuse of judicial discretion will warrant interference with such decision on appeal).
¶5 The Court's failure to adhere to the proper scope of appellate review is a cancer which has metastasized in this opinion. In the District Court, the State and the Appellant stipulated that the river at the point where this incident occurred was navigable. That is the record upon which this Court should exercise its appellate jurisdiction. Instead of conducting an appellate review of the stipulations arising from the District Court, the Court allows the State to raise, for the first time on appeal, the issue of navigability and seek to be relieved from the stipulation upon which the trial court made its decision. I fail to find any legal authority for the Court's election to go outside the record presented to it to decide a question not presented to the District Court.
¶6 The error is then magnified when the opinion seeks to utilize cases which have not addressed the issue of navigability as to this particular tract of land. In relying on Choctaw Nation v. Oklahoma, 397 U.S. 620, 633, 90 S.Ct. 1328, 1336, 25 L.Ed. 615 (1970), the opinion fails to recognize that case dealt with a different tract of land in an area where the Arkansas was navigable. In addition, the land at issue in that case was never allotted to tribe members by the Cherokees prior to the Act of April 26, 1906, an act which paved the way for Oklahoma's admission into the union on equal footing with the original states. The land at issue here was allotted.
¶7 If we assume the holding in Choctaw Nation applies to the instant tract of land, title passed from the United States to the Cherokee Nation. Thereafter, title passed from the Cherokee Nation to the individual Cherokee allottee and later the land was deeded to the City of Miami. If the Cherokees owned the riverbed, as per Choctaw Nation, the question then is whether the Cherokees passed title to the riverbed to its allottee. If it did, the Appellant loses. If it did not, title to the Neosho/Grand riverbed would arguably remain in the Cherokees via the United States as trustee. In this case the parties seem to agree the instruments are silent on this issue. However, that is the problem with this opinion and its "de novo" review. The opinion is making assumptions which are not born out by the record. In addition, factual issues must be litigated to provide a record upon which this Court can then make a decision within the context of its appellate review. Based on the record properly before this Court at this time, there is no basis upon which this Court can make a factual finding the tract of river in question is not navigable.
¶8 There is no showing the State should be relieved from the stipulation it entered into in the trial court. Based on the State being bound to its stipulation and no showing being made to this Court as to how or why it should be relieved from that stipulation, together with the fact the Court has gone outside the record before us to reach its decision, I must dissent to the Court's decision.