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Elam v. Municipal Court of Oklahoma City6/28/1988
ORDER GRANTING WRIT OF MANDAMUS REMANDING FOR FURTHER
The opinion of the court was delivered by: BRETT, Presiding Judge.
The petitioner, Donna Elam, filed a pleading in this Court entitled "Petition for Writ of Habeas Corpus and Writ of Mandamus" wherein she requested this Court to issue the writ of habeas corpus to release her from the Oklahoma City Jail and a writ of mandamus to order Respondent Terry A. Pendell to place her on probation, or in the alternative, set an appeal bond.
Petitioner pled guilty in Oklahoma City Municipal Criminal Court of Record, Case No. 88-7692154, to a charge of Driving Under the Influence of an Intoxicating Liquor (Oklahoma City Code § 32-7 (1983)) before the Honorable Terry A. Pendell. A pre-sentence interview was ordered, and sentencing was set for March 29, 1988. After determining that petitioner was unable to pay the probation fee at the time of sentencing, the trial court sentenced her to thirty (30) days in jail and suspended a $500 fine, ordering her to pay costs within thirty (30) days after release. Appeal bond was denied March 31, and petitioner sought and received on April 1 an Order from this Court entitled "Order Granting Habeas Corpus and Directing Response," in which respondents were ordered to release petitioner on a personal recognizance bond and file a response explaining why the probation fee involved herein is not a cost as contemplated by Rules 8.1-8.8 of the Rules of the Court of Criminal Appeals.
The narrow question on which we are ruling is whether an Order of the Municipal Court of Oklahoma City, dated April 21, 1987, which directs that a person who cannot pay required probation fees shall be denied probation, is unconstitutional under the 14th Amendment of the United States Constitution and Art. II, §§ 2 and 6 of the Oklahoma Constitution. We hold that it is.
The City first argues that the issue is improperly before this Court. Judgment and Sentence was pronounced on March 29. Petitioner asked for an appeal bond and it was denied on March 31. Petitioner sought and received an order entitled "Order Granting Habeas Corpus and Directing Response" on April 1. The City argues that petitioner waived her right for direct appeal of a guilty plea by failing to follow the procedures set forth in 22 O.S. 1981 § 1051 [22-1051] and Rule 4.1 of the Rule of the Court of Criminal Appeals (codified at 22 O.S. 1981, Ch. 18, App. Rule 4.1). Specifically, petitioner did not qualify for a Writ of Certiorari by filing an application to withdraw her guilty plea within ten days from the date of pronouncement of judgment and sentence.
The City cites Phillips v. State, 546 P.2d 1027 (Okl.Cr. 1976), cert. denied, 425 U.S. 954, 96 S.Ct. 1733, 48 L.Ed.2d 199 (1976), for the proposition that habeas corpus is not the proper mode for review of the validity of a plea of guilty. See also 22 O.S. 1981 § 1051 [22-1051]. We agree that Phillips stands for that proposition, and stress that we do not depart from the principles set forth therein. We are not implying that a writ of certiorari will not work in the vast majority of cases in which a guilty plea is entered. However, under Art. II, § 10 of the Oklahoma Constitution, this Court has the authority on a case-by-case basis to determine whether a writ of habeas corpus is appropriate. When, as here, in the extraordinary circumstances where a defendant suffers an extreme deprivation of rights on a constitutional scale and the remedy of certiorari is inappropriate, the writ of habeas corpus is constitutionally guaranteed. See Art. II, § 10; See also Campbell v. State, 500 P.2d 303 (Okl.Cr. 1972). And since the writ of
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