source: Caselaw Access Project

author: CHAPEL, J.

license: Public Domain

text:
    2004 OK CR 3
    Christopher William MESSICK, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2002-1369.
    Court of Criminal Appeals of Oklahoma.
    Jan. 27, 2004.

      R. Lawrence Roberson, O.I.D.S Non-Capital Trial Division, Sapulpa, for Defendant at Trial.
    Pamela Hammers, Assistant District Attorney, Creek County District Attorney, Sa-pulpa, for the State at Trial.
    Katrina Conrad-Legler, Appellate Defense Counsel, Norman, for Appellant on Appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Kellye Bates, Assistant Attorney General, Oklahoma City, for Appellee on Appeal.
   OPINION

CHAPEL, J.

¶ 1 Christopher William Messick, Jr., was convicted of two counts of Attempted Murder in the First Degree (Counts I & II), under 21 O.S.2001, § 701.7 and 21 O.S.2001, § 42, in Creek County District Count, Case No. CF-2002-4. The jury recommended a sentence of life without parole on each of the two counts. The Honorable Franklin D. Rahhal did not follow the jury’s sentencing recommendation, however, and instead sentenced Messick to imprisonment for twenty (20) years on each of the two counts, with the sentences to run consecutively. Messick appeals his convictions and his sentences.

¶2 On December 22, 2001, Christopher Messick and his wife, Rachel Messick, along with their two-year-old son, Colby, stopped to visit in the home of their neighbor, Darrell Medloek, in Drumright. While they were there, both Messick and Rachel took about three hits off of a marijuana joint. Rachel testified at trial that although she and Mes-sick were both using “a lot” of methamphetamine and marijuana at the time, on virtually a daily basis, neither one of them used any methamphetamine that day. They went home because Messick was tired.

¶ 3 When they got home around 3:30 p.m., however, Messick was unable to fall asleep. At some point he came out of the bedroom while Rachel was making brownies, and she noticed a bottle of pills in his pocket. When Messick refused to let her see what they were, Rachel threatened to divorce him, saying that she “wasn’t going to be in a marriage where there were going to be a lot of secrets.” Shortly thereafter, Messick came up behind Rachel, as she was wrapping a Christmas gift, and began putting her in a chokehold, cutting off her breathing. Rachel pleaded with him to stop, but he responded, “Just don’t fight it.” Rachel soon passed out onto the dining room floor.

¶ 4 When Rachel woke up, she was confused about her whereabouts, but then realized that Messick was hitting her on the back of the head with something. She then lost consciousness again. At some point Rachel woke up enough to see Messick carrying Colby into the dining room, holding him by his head/neck. She passed out again, then awoke to find Messick stuffing a rag into her mouth, apparently to keep her from screaming, while still holding Colby. Rachel passed out again, and awoke to see Messick squatting down doing something, i.e., setting the house on fire. When Rachel looked at him, he looked her in the eye and said, “It is okay, baby. I will see you in heaven.” Rachel passed out a final' time, and awoke to the smell of smoke and a feeling of intense heat.

¶ 5 Despite her thoroughly battered and extremely weak condition, Rachel managed to find Colby and get him into a bedroom. The doors to the house were locked and blocked by fires. After almost giving up from exhaustion and pain, Rachel managed to break a window, open it up, and set Colby down on the ground outside. She did not, however, have the strength to get herself out of the house. Fortunately, a neighbor heard the glass brealdng and found Rachel hanging out the window. That neighbor and another then got her out and called the Drumright Fire Department.

¶ 6 Rachel and Colby were taken to St. Francis Hospital in Tulsa. Colby was treated for smoke inhalation and some burns and released later that day. Photographs admitted at trial show that Colby had bruising on his face and on his left ear. Photographs of Rachel admitted at trial show that she had bad bruising and swelling on her face, especially around her mouth and lips, around her eyes, on her right cheek, and also on her right ear. Rachel also had bruising on her neck, chest, and back, as well as first and second degree burns on her hands. The orbital bone around her left eye was fractured; and she had conjunctive hemorrhages in both eyes. Rachel was treated for excessive smoke inhalation and kept in the hospital for three days.

¶ 7 Four separate fires had been set in the home. Only one of the fires was still burning when the fire department arrived, though it was almost to the point of getting out of control and had to be extinguished. This fire, along with another one, was set in the dining room, where Rachel (and possibly Colby) lay unconscious on the floor. This main fire was set in front of the door between the dining room and a child’s bedroom, apparently by igniting a pile of clothing. Photographs admitted at trial show substantial damage, especially to the area above and around the door. Two other fires were set in the living room near the front door, apparently by igniting a diaper and a child’s blanket. These fires, as well as the second dining room fire, self-extinguished.

¶ 8 Messick called the Okfuskee County Sheriff’s Office two days later, on Christmas Eve, and turned himself in peacefully. In a tape-recorded statement to Okfuskee County Undersheriff Roy Wilbourn, which was admitted at trial, Messick confessed to hurting his wife “real bad” by “choking her and stomping on the back of her neck.” He admitted to choking his wife until she passed out and that he thought he had killed her. When asked if he stomped on the back of her neck to make sure she was dead, Messick responded, “Yes, sir.” He also confessed to hurting his child “by twisting his head.” When asked if he was trying to break the child’s neck, Messick responded that he “was tryin’ to.” He later admitted that he was trying to kill his child. Messick also admitted that he set fires in the house, leaving his wife unconscious on the floor.

¶ 9 When asked why he had hurt his wife and child, Messick talked about not wanting his wife to leave him and not wanting someone else raising his child. He noted that he was headed to jail on other charges — assault and battery on a police officer, eluding an officer, and two other charges — arising from an incident earlier that month. When asked about drug use, Messick readily admitted to being a user of “crank” (methamphetamine) and marijuana, but stated that he had only had three or four hits of marijuana that day. He also stated that he had been in “lock-down” in Creek County Jail for the previous week, where he had been unable to get any crank, though he did get some marijuana.

¶ 10 In Proposition I, Messick asserts that his convictions for Attempted Murder in the First Degree violate due process, because the crime of attempted first-degree murder does not exist in Oklahoma. He maintains that it was improper for the State to charge and convict him under Oklahoma’s general attempt statute, 21 O.S.2001, § 42, in combination with the first-degree murder statute, 21 O.S.2001, § 701.7, because a separate statute specifically addresses the kind of attempted killing with which he was charged, namely, 21 O.S.2001, § 653(C).

¶ 11 Messick raised this claim at the trial court level, where it was rejected by the district court before trial. Messick was then tried and convicted of Attempted Murder in the First Degree, as defined under § 42 and § 701.7. At the time of sentencing, however, the district court reluctantly concluded that Messick’s legal argument was valid and, consequently, that the maximum sentence that could be imposed for the attempted killings of his wife and child was twenty years imprisonment on each of the two counts, based on § 652(C). The district court then sentenced Messiek to twenty years on each of the two counts, to be run consecutively, rather than the life without parole sentences given by the jury. The court did not, however, modify the description of the crimes upon which Messiek was convicted. Hence the Judgment and Sentence states that Messiek was convicted of two counts of “Attempted Murder in the Fust Degree,” under “21 O.S. 701.7.”

¶ 12 Oklahoma’s general attempt statute states (in relevant part) as follows:

Every person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows:
1. If the offense so attempted be punisha- ' ble by imprisonment in the penitentiary for four (4) years or more, or by impris- ■ onment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary, or in a county jail, as the ease may be, for a term not exceeding one-half (1/2) the longest term of imprisonment prescribed upon a conviction for the offense so attempted.

Thus, by its own terms, the general attempt statute only applies where our criminal code does not contain a separate provision applying to the specific kind of attempt charged.

¶ 13 Messiek maintains that § 652(C), which appears within Chapter 21 of Title 21, entitled “Attempts to Kill,” is just such a provision. It states:

Any person who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death, or in any manner attempts to kill another, or in resisting the execution of any legal process, shall upon conviction be guilty of a felony punishable by imprisonment in the State Penitentiary not, exceeding twenty (20) years.

Hence § 652(C) applies to all attempts to kill. It also establishes the maximum penalty for such attempts (other than those that are separately proscribed) as twenty (20) years imprisonment.

■ ¶ 14 This Court has recognized the inappropriateness of charging attempts to kill under the general attempt statute for over fifty years. In Ex Parte Smith, the Court granted habeas corpus relief to a prisoner who had pled guilty to “Attempted Murder” and been sentenced to imprisonment for fifty (50) years. The Court noted that 21 O.S., § 42 “is a general statute designed to cover attempts to commit crimes where there has been no specific enactment of the Legislature to cover such attempted crimes.” The Court also found that “attempts to kill by shooting are specifically provided for by statute,” namely, 21 O.S., § 652.

¶ 15 The Smith Court noted that the language of the general attempt statute specifically limited that provision to situations “where no provision is made by law for the punishment of such attempt,” and hence that “no question of election is involved.” The Court found this conclusion “inescapable” and noted that “[t]o hold otherwise would negate the plain unmistakable language of the statutes.” We agree. We continue to hold, as the Smith Court did over fifty years ago, that the crime of attempted murder cannot be charged under Oklahoma’s general attempt statute, 21 O.S., § 42, but rather must be charged under the specific provisions of Title 21, Chapter 21 (§§ 651-653).

¶ 16 The State acknowledges this Court’s governing decisions in Smith and also Minter. The State argues, however, that “in recent years, this Court has recognized the crime of Attempted Murder in the First Degree,” citing three cases (including two unpublished cases) in which this crime was mentioned. Thus it appears that clarification of this issue is warranted.

¶ 17 The only published case cited that mentions this crime is Stemple v. State. Yet the conviction for attempted murder in that case was reversed on sufficiency grounds, making the more thorny legal question of whether the crime actually existed unnecessary to the resolution of that case. In addition, the issue of the crime’s existence was not raised in that case.

¶ 18 Similarly, the issue was not raised in the two unpublished cases referenced by the State: Deckard v. State, Case No. F-1999-1545 (Okl.Cr. Nov. 9, 2000), and James v. State, Case No. F-1995-420 (Okl.Cr. May 14, 1996). As noted by the trial court in the current case, this Court upheld a conviction for Attempted First Degree Murder, with a sentence of life imprisonment, in Deckard. In addition, this Court upheld a conviction for Attempted Murder in the First Degree, with a sentence of twenty (20) years, in James. Yet the propriety of charging a defendant with attempted murder by use of the general attempt statute (§ 42) and the first-degree murder statute (§ 701.7) simply was not raised or addressed, implicitly or explicitly, in either of those cases.

¶ 19 In fact, a review of the briefs in the Deckard case reveals that Deckard never questioned the validity of the attempted murder charge in his case, and that he actually conceded that his sentence of life imprisonment was within the proper sentencing range for this crime (though he maintained that it was nonetheless excessive). The trial court’s expressed belief that if there was something “wrong” with the attempted murder charge in that case, surely this Court “would have said something about it” reveals a misunderstanding of this Court’s role in the judicial process.

¶ 20 It is the role of the Court of Criminal appeals to decide the issues that are properly raised before it. Where an error, obvious or otherwise, is not properly raised in a case before this Court, the Court’s failure to address or “fix” the error cannot and must not be interpreted as a finding by the Court that the error does not exist, that the judgment and sentence are entirely “correct” and appropriate, or that all of the findings and rulings at the trial court level were proper. We nevertheless recognize that the fact that this Court has upheld convictions for “attempted first-degree murder,” though in unpublished opinions, may have caused confusion for some. This opinion is intended to rectify any such confusion. We also note that the current decision avoids the philosophical and pragmatic problems of attempting to determine what constitutes “one-half’ of a sentence of life or life without the possibility of parole.

¶ 21 Hence we find that Messick’s convictions for Attempted Murder in the First Degree, under 21 O.S.2001, § 701.7 and 21 O.S.2001, § 42, cannot stand. Messick should have been charged and tried under 21 O.S.2001, § 652(C), for Assault and Battery with Force Likely to Produce Death or, simply, Attempt to Kill. And thus we come to the question of relief.

¶ 22 The State maintains that because Messick has already been sentenced according to the maximum sentence under § 652(C), he has suffered no prejudice and the Judgment and Sentence is “not defective.” Messick maintains that because he was charged and tried, for a crime that “does not exist,” he should be given a new trial. We reject both of these approaches. Mes-sick has demonstrated, and this Court herein concludes, that the crime of Attempted Murder cannot be charged under Oklahoma’s general attempt statute. Attempted killings, such as those committed by Messick, must be charged and punished under the specific Attempt to Kill provisions of Title 21, Chapter 21, §§ 651-653.

¶23 Nevertheless, Messick has not been prejudiced by his convictions for attempted murder such that he is entitled to a new trial. The evidence presented by the State more than adequately established that Messick committed an assault and battery upon both his wife and his child, with such force as was likely to produce their deaths, and also that by so doing he was attempting to kill both of them. In fact, Messick admitted all the essential elements for these § 652(C) crimes within his taped confession to Undersheriff Wilbourn. The fact that the State also presented evidence sufficient to establish that Messick was acting with “malice aforethought,” as is required by the first-degree murder statute, does not undermine the adequacy of the State’s evidence to support the lesser offenses under § 652(C).

¶ 24 Messick had adequate notice of the nature of the State’s case against him, and he does not claim that his defense was affected by the trial court’s initial rejection of his legal arguments regarding the attempted murder counts. He has not provided even a hypothetical example of how he was prejudiced by the State charging and trying him for a greater crime than the one upon which he will now be held accountable. The jury sentenced Messiek to the harshest penalty upon which it was instructed; hence there can be no doubt that the jury fully appreciated the heinous ñatee of Messick’s crimes and that it intended that he be punished as severely as legally possible. The trial court has already sentenced Messiek to the maximum possible sentence of twenty (20) years for each of the two counts upon which he was convicted, to be run consecutively. We find that these sentences are the maximum allowable under the law. They are far from excessive.

¶ 25 Under these circumstances, it is appropriate to modify the Judgment and Sentence in Messick’s case from two counts of Attempted Murder in the First Degree to two counts of Attempt to Kill, under 21 O.S. 2001, § 652(C). And as so modified, we affirm these convictions. Because the trial court has already appropriately sentenced Messiek to the maximum sentence upon each of these counts, we affirm his sentences.

Decision

¶ 26 Messick’s CONVICTION for Counts I and II, Attempted Murder in the First Degree, is MODIFIED to Counts I and II, ATTEMPT TO KILL. As so modified, Mes-sick’s conviction for two counts of Attempt to Kill is AFFIRMED. Messick’s SENTENCE of twenty (20) years imprisonment for each of these two counts, to be run consecutively, is AFFIRMED.

JOHNSON, P.J., LILE, V.P.J., LUMPKIN and STRUBHAR, JJ., concur.

      . Count I involved the attempted murder of Mes-sick's wife; Count II involved the attempted murder of their two-year-old child. In addition to these counts, the original information charged Messick with Arson in the First Degree, under 21 O.S.2001, § 1401 (Count III); and Injury of a Minor Child, under 10 O.S.2001, § 7115(A) (Count IV). Counts III and IV were dismissed at a motion hearing on the day trial began.

      . The circumstances and rationale for the trial court’s decision to diverge from the jury's recommended sentence are addressed within the discussion of Messick's Proposition I.

      . Rachel had two older children from a previous marriage, who were also with the family, but they were picked up by their father at the Med-lock home for the Christmas holiday.

      . Rachel testified, "It was nothing for us to sit down and go through a sixteenth of meth between the two of us in a twenty-four-hour period."

      . Rachel testified that she had never mentioned divorce before, but that Messick had been acting very strangely in the two previous months. She testified that he was "scaring” her and acting "schizo” and "very paranoid.” She testified that Messick had stopped wanting to go to work and was afraid people were out to get him and that she was going to leave him for someone else. Rachel testified that she believed the changes in his behavior were due to his drug use.

      . Messick had been hiding in a residential home that he had broken into and found unoccupied. Messick reported that after fleeing his home on foot, he stole a truck, drove it until it ran out of gas, hitchhiked for a while, stole another truck, drove it until he crashed it, then walked through a woods until he came upon the home at which he was arrested.

      . Messick staled that his child was only a few feet away when he was assaulting his wife, but that he did not know where his child was when he left.

      . Although the State did not emphasize this piece of evidence, it likely hurt Messick's "the-meth-made-me-do-it” defense at trial, which otherwise had substantial support within Rachel's testimony and that of other witnesses. In fact, Rachel testified for the defense later in the trial that before Messick's drug use, he "was very kind, compassionate, caring, done what he had to to keep his family fed and happy" and that he had treated she and Colby "like a pot of gold.”

      . On the morning Messick’s trial was scheduled to begin, his counsel filed a motion to dismiss the attempted first-degree murder counts (Counts I and II), raising the same arguments and authority discussed herein. Defense counsel likewise filed a separate motion to dismiss the arson count (Count III), arguing that the original Information violated double jeopardy by charging both arson and attempted murder in the way that it did. (Count I charged that Messick attempted to kill Rachel "by means of strangling [her] causing her to pass out, then setting fire to the residence.” Count II charged that Messick attempted to kill Colby "by means of setting fire to the residence while [Colby] was inside the residence, trapping [him] inside.”)
      The district court began by noting its dissatisfaction with the timing of the motions to dismiss, and then announced it would take up tire motion regarding the arson count first. The State argued that the actual evidence would show that the attempted killings were separate and prior to the setting of the fires. The trial court responded that the Information was not set out that way. The State then agreed to dismiss Counts III and IV and allege only two counts of attempted murder (even though defense counsel had not requested dismissal of Count IV).
      The district court then took up the motion regarding the attempted first-degree murder counts. The court recognized the validity of the motion, but then found that based on this Court's unpublished decision in Deckard v. State, Case No. F-1999-1545 (Okl.Cr. Nov. 9, 2000), a case arising out of that same courtroom, the court was denying the motion to dismiss. In Deckard this Court affirmed a conviction for "Attempted First Degree Murder” and a sentence of "life imprisonment with the possibility of parole” for this crime. The trial court commented that "if there was something wrong, I'm sure — if that wasn't accurate, they would have said something about it." The State then filed an Amended Information charging two counts of attempted first-degree murder (and not even mentioning the setting of fires in the home).

      . The Judgment and Sentence contains a notation explaining the court’s divergence from the jury’s recommendations and noting that the sentences given are the maximum under § 652(C).

      . 21 O.S.2001, § 42 (emphasis added).

      . See also 21 O.S.2001, § ll(specific provisions making particular act criminal and providing the punishment therefore control over general criminal statutes that would otherwise be applicable).

      . 21 O.S.2001, § 652(C) (emphasis added). Section 652(A) applies specifically to shooting with intent to kill, with a maximum sentence of life; § 652(B) applies specifically to using a vehicle to facilitate a shooting, with a maximum sentence of twenty (20) years. See 21 O.S.2001, § 652.

      . In fact, the Court addressed this issue as early as 1942, in its decision in Minter v. State, 75 Okla.Crim. 133, 129 P.2d 210 (1942). In Minter, the Court reversed a conviction of "attempted murder,” under the § 42 general attempt statute, finding that the defendant should have been charged with willful poisoning of someone’s food. Id. at 212-13. The Minter Court noted that ”[t]he general attempt statute, by its own terms, applies only where there is no other provision of law for the punishment of such attempt.” Id. at 213. The Court further commented that it was "unable to find any case in Oklahoma where the crime charged against the defendant is that of 'attempted murder' under [§ 42]” and surmised that this was probably true "because we have other specific statutes dealing with 'Attempts to Kill.’ " Id. at 212 (citing Title 21, Chapter 21).
      Nevertheless, the Minter Court concluded that it was not necessary for it to decide the question of whether "attempted murder” could ever be charged under § 42, because the crime that the defendant had committed was specifically prohibited under 21 O.S.1941, § 832. Id. at 213. The Court found that it would have been improper to charge Minter under any of the attempted killing provisions of Chapter 21, because no person had actually "taken” the poisoned food (because the defendant was observed tampering with his wife's lunch). Id. at 212.

      .95 Okla.Crim. 370, 246 P.2d 389, 392-93 (1952). ■

      . The language of the information, which the Court obtained, made clear that the defendant was accused of shooting the victim "with a premeditated design” to take his life. Id. at 391.

      . Id. at 392. The language of 21 O.S.1941, § 42 that was being considered in 1952 is substantively identical to the current § 42, quoted supra.

      . Id. at 392. At the time, this section provided as follows: "Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten years.” 21 O.S.1941, § 652. Hence the scope of Section 652 was somewhat less in 1952, and the range of punishment was substantially less. The Smith Court noted that 21 O.S.1941, § 653 covered all other assault-with-intent-to-kill offenses, not covered by § 652. Id. at 392. It still does. See 21 O.S.2001, § 653.

      . Id. at 392 (citing Minter).

      . Id.

      . 2000 OK CR 4, 994 P.2d 61, cert. denied, 531 U.S. 905, 121 S.Ct. 247, 148 L.Ed.2d 178 (2000).

      . Id. at 71-72.

      . The Appellant's brief in Deckard states as follows: "Although Mr. Deckard's sentences are technically within the range provided by law, they do not bear a direct relationship to the nature and circumstances of the offenses.”

      . This Court does commend the trial court, however, for making the difficult but correct decision to modify the sentences pronounced by Messick’s jury, such that they are in accord with § 652(C).

      . The Minter Court likewise noted, "[I]t appears doubtful if the Legislature ever contemplated that such an offense as 'attempt to murder' should ever be filed under [21 O.S., § 42], because of the indefiniteness of the punishment which may be assessed.” 129 P.2d at 213. The Court noted that charging under one of the specific attempt-to-kill statutes avoided the problem of determining how to instruct upon and apply a sentence of "one-half of life imprisonment.” Id.

      . See-22 O.S.2001, § 952 (limiting grants of new trials to situations where defendant’s "substantial rights have been prejudiced”).

      . Messick’s Proposition II claim that the evidence presented against him at trial was insufficient to convict him of first-degree attempted murder has been rendered moot by this Court’s resolution of his Proposition I claim.

      . In fact, there can be little doubt that Messiek likely benefited by the chain of events in this case, since it is hard to believe that the State would have agreed so easily to dismiss Counts III and IV (arson and injury to a child), rather than modifying the language of the Information, if it had not been relying on the trial court’s (mistaken) ruling that the first-degree attempted murder counts were valid and that they subjected Mes-sick to sentences of either life or life without parole.

      . Messiek writes in his brief, "There is no question that Appellant has been prejudiced by his trial proceedings.” Yet he offers not even a single example of how he was prejudiced.

      . We hereby reject Messick's Proposition III excessive sentence claim. We also reject his Proposition IV cumulative error claim, finding that the only error established has already been addressed and resolved.

      . See 22 O.S.2001, § 1066 (Court’s power to modify judgment and sentence); see also McArthur v. State, 1993 OK CR 48, 862 P.2d 482, 484-85 (modifying conviction from robbery with dangerous weapon to robbery by force or fear); Kolbergv. State, 1996 OK CR 41, 925 P.2d 66, 69 (modifying conviction from felony escape to misdemeanor).


text:
    2004 OK CR 4
    Maximo Lee SALAZAR, Appellant v. STATE of Oklahoma, Appellee.
    Nos. PCD 2002-984, PCD-2003-1220.
    Court of Criminal Appeals of Oklahoma.
    Jan. 29, 2004.
   ORDER GRANTING EXTENSION REQUEST, SETTING FORTH APPEAL GUIDELINES, AND ESTABLISHING DUE DATES FOR BRIEFS

¶ 1 On June 11, 2003, this Court granted post-conviction relief in an unpublished order in the above-referenced matter, thereby remanding the case to the District Court of Comanche County for a jury determination on the issue of mental retardation. The jury hearing on mental retardation was held from September 2nd through September 5th, 2003, before the Honorable Allen McCall, District Judge. At that hearing, the jury found Petitioner is not mentally retarded.

¶ 2 On September 10, 2003, before Judge McCall had even filed his Findings of Fact and Conclusions of Law (including the jury’s determination on mental retardation), Petitioner filed a Notice of Intent to Seek Review and Designation of Record. Judge McCall then filed his Findings of Fact and Conclusions of Law in this Court on November 3, 2003.

¶ 3 Thereafter, Petitioner filed a Second Notice of Intent to Seek Review and Designation of Record on November 7, 2003. He was erroneously given a new post-conviction appeal number, PCD-2003-1220. Counsel for Petitioner then filed (on November 12, 2003 in this appeal and on December 17, 2003 in PCD-2003-1220) his Petition in Error and a Verified Motion for Extension of Time to File Brief and Request Clarification of Rules for Seeking Review after Lambert Mental Retardation Trial. Petitioner later filed a fifty-one (51) page Brief with Combined Motion for New Trial both in this appeal and PCD-2003-1220.

¶4 Recently, in Martinez v. State, 2003 OK CR 25, 80 P.3d 142, ¶ 14, this Court required the trial court to file Findings of Fact and Conclusions of Law within thirty (30) days from the conclusion of the jury proceeding on the issue of mental retardation. The Court also allowed parties the option of filing a brief of no more than ten (10) pages on the issue of mental retardation within fifteen (15) days from the filing of the trial court’s Findings of Fact and Conclusions of Law. However, in Lambert v. State, 2003 OK CR 11, 71 P.3d 30, ¶ 6, we required the trial court to file Findings of Fact and Conclusions of Law within forty-five (45) days from the conclusion of the jury proceeding and did not further discuss the filing of follow-up briefs.

¶ 5 Petitioner seeks clarification of the appellate procedure for appealing to this Court following remand for a jury determination on the issue of mental retardation, noting the differing procedures set forth in Lambert and Martinez. He further requests this Court establish guidelines for appeals from post-conviction jury determinations on mental retardation.

¶ 6 Petitioner’s requests reveal his failure to recognize his post-conviction application is still pending in this Court, and his remanded hearing on the issue of mental retardation was part of that post-conviction proceeding. However, we do recognize that the procedures on remand should be applied uniformly to eases of this type.

117 THEREFORE, the following procedures shall apply in all post-conviction cases where relief has been granted by allowing the defendant a remanded jury determination on the issue of mental retardation:

1. The district court shall file its Findings of Fact and Conclusions of Law, including the jury’s determination and any sentencing disposition, in this Court within thirty (30) days from date the jury’s verdict is entered;
2. There is no right of appeal from the remanded jury determination separate and apart from the pending post-conviction appeal;
3. The court reporter shall prepare and file the transcripts of the hearings within thirty (30) days from the date of the jury hearing. The district court clerk shall prepare and file the district court record, including the transcripts, within forty-five (45) days from the date of the jury hearing. Extensions of time in accordance with Rules 3.2(C)(2) and 9.2(C), Rules of the Court of Criminal Appeals, Title 22, Ch.18, App. (2003), may be requested.
4. Both parties may file a supplemental brief in response to the determination on mental retardation within twenty (20) days from the filing of the Findings of Fact and Conclusions of Law or the filing of the transcripts of the hearing, whichever is later. Briefs shall not exceed twenty (20) typewritten, 8½ x 11 inch pages in length, and shall not use more than twelve (12) characters per inch in the body of the brief. See Rule 3.5(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2003).

Due to the limited application for this procedure, it does not require an addition to our Rules. Instead, this uniform process will be included in all future orders of this type entered by this Court.

¶ 8 In this case, over sixty (60) days have passed since Petitioner’s jury determination on mental retardation. The trial court’s Findings of Fact and Conclusions of Law were filed in this case on November 3, 2003. The original record and transcripts were filed in PCD-2003-1220 on December 19, 2003, but shall now be transferred to the instant appeal.

¶ 9 Accordingly, Petitioner’s Motion for Extension of time to file brief is hereby GRANTED and both parties are granted twenty (20) days from the date of this Order to file a brief in accordance with this order. In all future cases involving post-conviction review of jury determinations, the procedure set forth above shall apply.

¶ 10 IT IS SO ORDERED.

¶ 11 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 29th day of January, 2004.

/s/Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

/s/Steve Lile STEVE LILE, Vice Presiding Judge

/s/Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/Charles S. Chapel CHARLES S. CHAPEL, Judge

/s/Reta M. Strubhar RETA M. STRUBHAR, Judge

      . As clearly established in Lambert v. State, 2003 OK CR 11, 71 P.3d 30, ¶ 5, there is no new right to appeal established when a person is granted post-conviction relief and allowed a remanded jury determination on the question of mental retardation. Rather, the post-conviction application remains pending with this Court, and the parties are allowed the opportunity to address issues arising from the hearing on mental retardation in the same post conviction case from which relief has been granted, by filing a supplemental brief after the District Court has filed its Findings of Fact and Conclusions of Law.

      . There is no statute or Court rule that allows one to file a Motion for New Trial in a post-conviction remanded evidentiary hearing. Therefore, the motion is DENIED.

      . Accordingly, PCD-2003-1220 is HEREBY DISMISSED and all documents filed in that proceeding shall be transferred to the instant appeal, PCD-2002-984.

      . We recognize Petitioner filed a Brief in this matter on January 15, 2004. However, that Brief will not be considered by this Court, and Petitioner should revise that Brief to conform to the guidelines set forth above.


author: LILE, Vice Presiding Judge. JOHNSON, Presiding Judge, CHAPEL, Judge,

text:
    2004 OK CR 5
    STATE of Oklahoma, Appellant, v. Melvin Henry GOINS, Appellee.
    No. S 2003-61.
    Court of Criminal Appeals of Oklahoma.
    Feb. 4, 2004.

      Francis R. Courbois, Oklahoma City, OK, Attorney for Defendant in District Court.
    F. Pat Versteeg, Assistant District Attorney, Sayre, OK, Attorney for State in District Court.
    F. Pat Versteeg, Assistant District Attorney, Sayre, OK, Attorney for Appellant on Appeal.
    Francis R. Courbois, Oklahoma City, OK, Attorneys for Appellee on Appeal.
   OPINION

LILE, Vice Presiding Judge.

¶ 1 Melvin Henry Goins was charged with Trafficking in Illegal Drugs (Marijuana) in violation of 63 O.S.2001, § 2-415 in the District Court of Beckham County, Case No. CF-2002-790. Goins filed a motion to suppress the evidence alleging, generally, that the search of his vehicle was in violation of the Fourth Amendment to the United States Constitution. A hearing was held before the Honorable Charles L. Goodwin.

¶ 2 Judge Goodwin ruled that the evidence must be suppressed, because the search was in violation of the Fourth Amendment. The State asserts that it cannot proceed without the evidence and now appeals to this Court based on 22 O.S.Supp.2002, § 1053(5). Section 1053 provides, in part, that the State may appeal,

Upon a pretrial order, decision, or judgment suppressing or excluding evidence where appellate review of the issue would be in the best interests of justice.

¶ 3 We find that the State’s appeal is proper and review of this issue is in the best interests of justice. Furthermore, this case presents an issue of first impression in this State.

¶ 4 On April 21, 2002, Melvin Henry Goins, driving a motor home, was stopped by Oklahoma State Trooper Ty Williamson for following too closely in violation of 47 O.S.2001, § 11-310. Goins accompanied Williamson to the patrol vehicle where Williamson issued Goins a warning citation, returned his papers to him, and told Goins, “that is all I need.”

¶ 5 Goins began to exit Williamson’s vehicle, and Williamson asked Goins if he could ask him something before he left. Goins replied, “Sure.” Williamson asked Goins if he was carrying any drugs, guns, large amounts of money or anything illegal in the motor home. Goins answered in the negative. Williamson then asked if he could search the vehicle and Goins said that he could. Troopers searched Goins’ motor home and discovered about three hundred (300) pounds of marijuana.

¶ 6 In suppressing the evidence, the trial court relied on McGaughey v. State, 2001 OK CR 33, 37 P.3d 130, and United States v. McSwain, 29 F.3d 558 (10th Cir. 1994). The trial court stated, “when the purpose of the stop is terminated, ... then any further search or request to search is illegal. That’s illegal under McGaughey and McSwain.” The State argues that the trial court’s reliance on these cases is misplaced and its ruling is in error.

¶ 7 The trial court did not rule on the validity of the stop, nor did Goins assert that the initial stop was invalid. We presume, for the purpose of this analysis, that the initial stop was valid. Our review of the trial court's decision is based on an abuse of discretion standard, which has been defined as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. State v. Love, 1998 OK CR 32, ¶ 2, 960 P.2d 368, 369.

¶8 The two cases relied on by the trial court are based on specific fact situations distinguishable from the facts of this ease. In McGaughey, this Court held that once an officer realizes that his reason for a traffic stop is mistaken, any further detention violates the Fourth Amendment, absent specific circumstances. McGaughey, 37 P.3d at 137, 144. The facts of the relevant search reveal that McGaughey was stopped because .the trooper could not see his taillights; however, once the stop was made, the trooper saw that the taillights were working. This Court ruled that the trooper should have terminated the stop.

¶ 9 Similar facts occurred in McSwain. A Utah Highway Patrol Trooper stopped a vehicle because he could not read the expiration date on the temporary registration sticker in the rear window. Once the vehicle was stopped, the trooper could see that the registration was valid. Ultimately, the trooper asked for consent to search, which was given, and cocaine was discovered in the vehicle.

¶ 10 The Courts in each of these cases held that once the troopers approached the vehicles and observed that there was no violation, the purpose of the stop was satisfied. Therefore, the actions by the trooper in extending the traffic stop to ask for identification, driver’s license, etc. exceeded the limits of lawful investigative detention and violated the Fourth Amendment. McGaughey, 37 P.3d at 140—41; McSwain, 29 F.3d at 561-62.

11 Both cases are distinguishable from the case at hand. The holdings of McSwain and McGaughey were based on a specific set of facts where the vehicle was. stopped based on a mistaken belief that the vehicle did not comply with the law or that the driver had violated or was violating the law. A detention that continues beyond the point where the officer determines that the stop was made on a mistaken belief cannot be considered reasonably related in scope to the initial justification for the stop. McGaughey, 37 P.3d at 137; McSwain, 29 F.3d at 561-62.

¶ 12 In McGaughey and McSwain, the officer continued the detention after it was determined that the stop was made on a mistaken belief. However, even in McGaughey, this Court acknowledged that, if the stop is based on an observed traffic violation, which is not made under mistaken belief, then the traffic stop is valid under the Fourth Amendment. McGaughey, 37 P.3d at 136; See also Lozoya v. State, 1996 OK CR 55, ¶ 32, 932 P.2d 22, 32.

¶ 13 Two different situations may support further police actions after an initial valid stop is concluded. On this point the Tenth Circuit has stated:

Lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter.

United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998)[internal citations omitted].

¶ 14 In Hunnicutt, a police officer stopped a vehicle for weaving across the shoulder line and the centerline of his lane of travel. Hun-nicutt took 10-12 seconds to stop. When stopped, Hunnicutt produced a license, but no insurance verification. He claimed to be buying the car from someone else, but the name he gave did not match the registered owner of the car. Computer cheeks also showed that the Hunnicutt’s driver’s license had been suspended. Hunnicutt and the passengers told inconsistent stories about their travel destinations. Hunnicutt denied that there were any illegal substances or weapons in the car. A drug dog was called and a large quantity of methamphetamine was found.

¶ 15 The Court found that the officer formed an “objectively reasonable and articu-lable suspicion” of illegal activity to support the extension of the traffic stop. The Court reasoned that because the officer asked about guns and drugs before returning the driver’s license, the stop must have been supported by the reasonable suspicion. Id. The Court found that the officer’s suspicion was properly based on “a driver who had no proof that he was the vehicle’s owner, no registration, and no proof he was otherwise authorized to operate the vehicle.” The driver failed to stop promptly, and, after the stop, the passengers repeatedly moved back and forth and leaned over. The totality of the circumstances supported further detention. Id.

¶ 16 We relied on Hunnicutt to support the extension of a valid traffic stop based on an “objectively reasonable and articulable suspicion” in State v. Paul, 2003 OK CR 1, 62 P.3d 389. However, this Court has yet to publish a case on the second exception, a driver’s voluntary consent to an extension of the traffic stop; therefore, we look to other jurisdictions for guidance.

¶ 17 The Tenth Circuit, in United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir.1996), discussed the second justification for the extension of a valid stop; the consensual encounter. The Hernandez case is instructive on this specific issue and is indistinguishable from the case at bar. In Hernandez, the Court held that “a traffic stop may become a consensual encounter if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority.” Id., 93 F.3d at 1498. In Hernandez, Oklahoma Highway Patrolman Dennis Flowers, stopped a vehicle for speeding. After writing a warning citation and checking the validity of the driver’s license and registration, the officer returned the Hernandez’s documents to him and told him he was free to go. As Hernandez turned to get out of the patrol car, the officer inquired if he could ask a few questions. Hernandez said he could. The officer asked about travel itinerary and whether there was any contraband in the car. Hernandez said there was none and consented to a search of the car. The officer testified that he was “fishing.” A subsequent search revealed sixty-five pounds of pseu-doephedrine (a precursor used in the manufacture of methamphetamine) and $1800.

¶ 18 The Court held that the driver’s consent was voluntary applying the test of whether a reasonable person in the driver’s position would believe he was not free to leave. Hernandez, 93 F.3d at 1499. The Court in Hernandez determined that, “There was no evidence that Flowers used a commanding or threatening manner or tone of voice, displayed a weapon, or touched Hernandez. ... There was no evidence that Flowers’ manner was accusatory, persistent, and intrusive.” Id.

1119 This Court uses the same test for the voluntariness of consent as is used in federal courts; the test for voluntariness is to be judged from a totality of the circumstances. Van White v. State, 1999 OK CR 10, ¶ 45, 990 P.2d 253, 267; See Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996), citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). This Court has consistently held that voluntary consent is a valid exception to the requirement of a search warrant. Case v. State, 1974 OK CR 27, ¶ 7, 519 P.2d 523, 524. When the State claims that there is consent, the proof offered by the State must be “clear and convincing that the waiver was a free and voluntary act.” Id. [citations omitted]

¶ 20 In a more recent Tenth Circuit case, United States v. West, 219 F.3d 1171 (2000), the Court discussed consensual encounters stating that,

An officer may extend a traffic stop beyond its initial scope if the suspect consents to further questioning or if the detaining officer has a particularized and objective basis for suspecting the person stopped of criminal activity. A traffic stop may become a consensual encounter, requiring no reasonable suspicion, if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority. “A consensual encounter is the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement officer.” ... Whether an encounter can be deemed consensual depends on “whether the police conduct would have conveyed to a reasonable person that he or she was not free to decline the officer’s requests or otherwise terminate the encounter.”... An officer is not required to inform a suspect that he did not have to respond to his questioning or that he was free to leave. Therefore, an unlawful detention occurs only when the driver has an “objective reason to believe he or she is not free to end the conversation with the officer and proceed on his or her own way.”

Id. at 1176-77. [internal citations omitted]. This Court has never held that an officer must have a reasonable and articulable suspicion before he may ask for consent after he has already engaged in a valid traffic stop. We have only held that consent must be voluntary.

¶ 21 Although this Court may construe Oklahoma’s Constitutional protections from unlawful search and seizure more narrowly than those found in the United States Constitution, there is no logical reason to do so here. To do so could result in a situation where an Oklahoma Highway Patrol Trooper can comply in every respect with the provisions of the United States Constitution resulting in the admission of the evidence in a federal court in Oklahoma but resulting in the suppression of the same evidence in an Oklahoma state court. Such circumstances contribute to a lack of confidence in the State’s criminal justice system in the law enforcement community and among the citizens of this state. Therefore, we adopt the long standing rule that a valid stop may be extended if the encounter becomes consensual.

¶ 22 The issues, in this case, are whether there was voluntary consent to the detention beyond the traffic stop or whether the officer had an articulable reasonable suspicion for detaining the driver beyond the stop. However, the trial court’s ruling precluded a decision on these issues. Therefore, we remand this case back to the trial court for further proceedings consistent with this opinion.

DECISION

¶ 23 The ruling of the trial court suppressing the evidence in this case is VACATED and this case is REMANDED to the trial court for further proceedings consistent with this opinion.

JOHNSON, P.J., Specially Concurs.

LUMPKIN and STRUBHAR, JJ., Concur.

CHAPEL, J., Concur in Results.

JOHNSON, Presiding Judge,

Specially Concurring.

¶ 1 I specially concur in the opinion as written herein. While the opinion is well written I need to point out my position as it relates to this particular case. This Court, in McGaughey v. State, 2001 OK CR 33, 37 P.3d 130, indicated when a stop is terminated further search or request is illegal. This case does not make a change in Oklahoma law.

¶ 2 This state may have more protection under the Oklahoma Constitution than the United States Constitution. This may well be my position as it relates to search and seizure. When the transcript is read in this case it is clear that there was consent and the consent to search was lawful. There is no evidence of force or a violation of the terms of the consent. The consent must be free and voluntary and not coerced in any way.

¶ 3 My position has not changed. A reasonable stop with proper questions, together with a citation and then a statement by the officer that the party is free to leave is a proper procedure. If after this, an officer asks for consent to search without any coercion and this is given freely and voluntarily, then the consent does not violate the Oklahoma or United States Constitutions.

CHAPEL, Judge,

Concurring in Result.

¶ 1 I concur in the result of today’s decision and with the Court’s conclusion that the trial court erred in its determination that McGaughey v. State and United States v. McSwain compelled the suppression of the drug evidence in this case. McGaughey and McSwain are both directed at a very specific and relatively rare factual situation, i.e., where an officer initiates a traffic stop based upon a reasonable but mistaken belief that an infraction of law has occurred or is occurring, only to discover, before interaction with the driver, that this initial perception was wrong (in McGaughey because the taillights were fully operational, in McSwain because the vehicle’s temporary registration was valid). Because the officers in these two cases continued to detain the drivers after realizing that their original reason for the stop was invalid, both cases involved illegal detentions and invalid stops.

¶ 2 Even Goins does not contend that the stop of his vehicle for following too closely was invalid or -based upon a mistake. Because his case does not involve a mistaken stop, McGaughey and McSwain are simply inapplicable. I fully agree with the Court’s central analysis of this issue. I disagree with its pronouncement of the standard of review and with its seeming resolution of a factual question that should be left to the trial court in the first instance.

¶ 3 The trial judge was quite clear that he was granting the defendant’s suppression motion based upon his interpretation of McGaughey and McSwain, i.e., that under these two cases, once “the purpose of the stop is terminated, ... any further search or request to search is illegal.” The court was unwilling to even hear evidence on the factual question of whether Goins voluntarily consented to the search of his motor home. Hence the court suppressed the evidence based upon its legal conclusion that McGau-ghey and McSwain forbid an officer to seek or obtain consent to search a vehicle after that officer has “terminated” or “resolved” the original purpose of the stop. This is a purely legal conclusion to which we owe no deference. We should be addressing it de novo, rather than under the abuse of discretion standard invoked by the Court.

¶ 4 I agree with the Court that the current case, unlike McGaughey and McSwain, involves a valid traffic stop and that the officer’s request to search Goins’s motor home occurred after the original purpose of the stop had been resolved. I likewise agree that officers in this situation can only extend their encounter with a citizen driver based upon one of the following justifications: (1) where an objectively reasonable and particularized suspicion regarding a separate offense has already emerged; and (2) where the encounter becomes consensual. Either of the reasons is sufficient to continue the encounter.

¶ 5 Finally, I agree with the Court’s decision to remand this case for further factual determination by the trial court. The trial court must decide whether Goins voluntarily consented to the search of his motor home, and if not, whether his continued detention was justified by the officer’s objectively reasonable and particularized suspicion that he was committing some other offense. I also agree that United States v. Hernandez, along with the other cases cited by the Court, appears highly instructive in resolving the issues before the trial court. I do not, however, think we should describe Hernandez as “indistinguishable from the case at bar,” since we should leave the disputed factual question of what actually occurred in this case to be resolved, in the first instance, by the trial court.

      . The United States Supreme Court, in Robinette, declined to establish a bright line rule that an officer must tell a driver that he is free to go, before consent is deemed voluntary.

      . In its Brief, the State argues that the officer had an articulable reasonable suspicion for extending the stop. "[Biases for this suspicion may include inconsistent statements about destination, and questionable proof of ownership or authority to operate the vehicle.” State v. Paul, 62 P.3d at 389. Other bases include a failure to stop promptly and extreme and continued nervousness (United States v. Hunnicutt, 135 F.3d at 1349; United States v. West, 219 F.3d at 1178), and the presence of short-range, two-way radios or a cell phone; suspicious destination, way points or origins of travel. United States v. Williams, 271 F.3d 1262, 1269-70, (10th Cir. 2001). These individual items, as well as the officer’s training and experience in detecting drug traffickers, are reviewed as part of the totality of the circumstances. Williams, 271 F.3d at 1268. This Court has relied on these types of factors to support the extension of a valid stop so that a drug dog could be summoned to the scene. See State v. Paul, 62 P.3d at 390.

      . 2001 OK CR 33, 37 P.3d 130.

      . 29 F.3d 558 (10th Cir.1994).

      .There is no disagreement between the parties about the fact that before any request for consent to search the motor home, Officer Williamson gave Goins a verbal and written warning about not following too closely, handed back his papers, told him "that is all I need,” and wished him a "safe day.” The parties likewise agree that at that point, the original purpose of the stop, i.e., Goins following too closely, had been fully resolved.

      . It should be noted that a continuation of the encounter based solely on the driver's voluntary consent does not technically involve any further "detention," as the Court's opinion suggests in its final paragraph, since, by definition, the driver is free to go at that point.

      . 93 F.3d 1493 (10th Cir.1996).


author: CARL B. JONES, Judge:

text:
    2002 OK CIV APP 108
    A.B. LUKER and Virginia A. Luker, d/b/a Luker Farm Partnership, Plaintiffs/Appellants, v. BOARD OF COUNTY COMMISSIONERS OF GREER COUNTY, Defendant/Appellee.
    No. 96,425.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 4, 2002.
    As Corrected Nov. 5, 2002.

      B. Christopher Wray, III, Michael K. Duffy, Altus, Oklahoma, and Myrna Sehack La-tham, Oklahoma City, OK, for Plaintiffs/Appellants.
    Michael R. Chaffin, Chickasha, OK, for DefendanVAppellee.
   OPINION

CARL B. JONES, Judge:

¶ 1 This is an appeal from the trial court’s denial of Appellants, A.B. Luker and Virginia A. Luker, d/b/a Luker Farm Partnership (Lukers), request for injunctive relief requiring the Board of County Commissioners of Greer County (County) to repair a dike and restore the original drainage system around the west half of Section 7, Township 4 North, Range 21 West, Indian Meridian in Greer County, Oklahoma. The Lukers also appeal the trial court’s finding that County acquired a prescriptive right to the centerline road which bisects the east and west halves of Section 7 and runs from north to south. The Lukers also appeal their waiver of their right to seek money damages from the jury. For the reasons set forth hereinafter, we affirm in part the trial court’s decision and remand with directions to the trial court to specifically delineate the parameters of County’s prescriptive easement to the centerline road.

BACKGROUND

¶ 2 The Lukers have farmed the west half of Section 7 for many years. In 1995, Greer County experienced significant rainfall. The Lukers’ property and neighboring properties were flooded. The Lukers claim the flooding in 1995 occurred because County failed to repair a breach in a dike located on County’s right-of-way on the north boundary of Section 7 and failed to repair and clear the drainage system around the west half of Section 7, including culverts and ditches on County’s roadways. The Lukers claim their property did not historically experience substantial flooding even during heavy rains. The Lukers made demand upon County to repair and maintain the existing drainage system which had been in place for more than 50 years. In 1995, County hired Robert D. Leonard, consulting engineer, to conduct a study and prepare a new drainage plan to modify the diversion ditch system along the north boundary of the NW/4 of Section 7 (Leonard Plan). The Lukers rejected the Leonard Plan for various reasons. County also conferred with other landowners in the area to determine the best approach to control the drainage and flooding.

¶ 3 The Lukers’ property was again flooded in 1996 and 1997. In 1997, County removed a railroad berm that crossed the cen-terline road; changed the grade and raised the section line road on the west side of Section 7 and the centerline road between the east and west halves of Section 7; constructed ditches and berms adjacent to the centerline road and made other repairs without notice to or consent of the Lukers.

¶4 In 1998, the Lukers sued County for negligent failure to maintain and repair county roadways, trespass on the Lukers’ property, and nuisance. The Lukers sought monetary compensation for damages to their property and crops and injunctive relief requiring County to repair, maintain and restore the original drainage system. The Lukers also claim the changes to the center-line road were not proposed in the Leonard Plan; were unauthorized; were performed on private property; and caused them additional damages because excess ditch dirt was dumped on their property and even more surface water from adjacent lands to the north now flood across their property. They also complain that at the time of the trial in May, 2001, the breach in the dike was still open. County denied its liability, claiming in part the Lukers’ damages were caused by an “Act of God.” County claimed maintenance and repairs of roadways and drainage systems are discretionary and the centerline road was acquired by prescription. As a result, County did not have to obtain the Lukers permission or consent to complete the maintenance and repairs.

¶ 5 After trial on the merits, testimony of witnesses and presentation of documentary evidence, the trial court summarized the Lukers’ request as follows:

The plaintiffs in this case, in effect, [have] asked the county to substantially maintain a dike along the north side of the Foster property, the northwest quarter of Section 7, and maintain the diversion of water which all witnesses testified came from drainage some two sections of land to the north of Section 7. The plaintiff asks that the diversion be maintained and the water be taken on to the west instead of going south and west towards the natural drainage, in effect, changing the water over a water course to the west, rather than following the drainage system that nature put there before there was a railroad track and before there was a dike.

¶ 6 Thereafter, the trial court denied the Lukers’ motions for directed verdict and request for injunctive relief finding the center-line road was a public right-of-way, acquired by County through prescription, and that County acted reasonably in digging ditches down the centerline road in an effort to improve drainage to the south. The trial court also determined County is not responsible for the flooding and due to the acceleration and collection of the water from the north, County cannot be compelled to maintain the diversion system that caused the water to go to another water source when that is not the natural flow.

STANDARD OF REVIEW

¶7 In reviewing the trial court’s denial of injunctive relief and grant of a prescriptive easement, we adhere to the principals that such matters are of equitable cognizance and are within the sound discretion of the trial court. Accordingly, a judgment refusing to issue an injunction and granting a prescriptive easement will not be disturbed on appeal unless the lower court has abused its discretion or the decision is clearly against the weight of the evidence. James v. Board of County Com’rs of Muskogee, 1999 OK CIV APP 47, ¶ 7, 978 P.2d 1002, 1003; see also Sharp v. 251st Street Landfill, Inc., 1996 OK 109, ¶4, 925 P.2d 546, 549. We also recognize an injunction is an extraordinary remedy that should not be lightly granted. Id.

ANALYSIS AND REVIEW

¶ 8 The Lukers allege the trial court’s determination that County had no duty to repair and restore the existing drainage system surrounding the west half of Section 7 to its previous condition is contrary to law and against the clear weight of the evidence. The Lukers urge County had the mandatory duty under 69 O.S.1991 § 601 to maintain and repair the county roadway and drainage system around Section 7; and, County’s failure to do so caused irreparable injury to the Lukers’ property; therefore, they are entitled to their requested injunctive relief.

¶ 9 County asserts the denial of the requested injunctive relief should be affirmed because County had the discretion to choose road maintenance methods which are best for the whole county, not just a single landowner. County urges although it may have a ministerial duty to construct and maintain the roads, the precise method of road maintenance is discretionary. County’s evidence was that the proposed method of maintenance for Section 7, as recommended in the Leonard Plan, was accepted by a majority of the landowners in the area, but rejected by the Lukers. County urged it had the discretion under § 601 to reject the demands of a single landowner if their demands appear to be against the interest of the majority.

¶ 10 In making our decision, we are guided by Oklahoma Supreme Court’s explanation of § 601 in Oldfield v. Donelson, 1977 OK 104, 566 P.2d 37:

Under the provisions of 69 O.S.1971 § 601, the Boards of County Commissioners of various counties have “exclusive jurisdiction” over the designation, construction, maintenance and repair of all of the county highways and bridges. When the Legislature vested the Boards of County Commissioners with “exclusive jurisdiction” over the designation, construction and maintenance of county highways, the Legislature mandated that the Board of County Commissioners must exercise considerable official discretion in the exercise of their jurisdictional powers. This Court will not interfere with the exercise of such discretion except in rare cases.

1977 OK 104 at ¶ 9, 565 P.2d at 40-41.

¶ 11 The Oldfield ease instructs the boards of county commissioners have a duty to construct and maintain, as county highways, those roads which best serve the most people of the county. We find County presented sufficient evidence that its maintenance and repairs of the roadways and drainage system around Section 7 were reasonable and for the benefit of most of the landowners. We also find sufficient evidence and the law support the trial court’s determinations that County cannot be held responsible for the flooding and cannot be compelled to maintain the original diversion system.

¶ 12 Next, the Lukers urge the trial court’s finding that County acquired a prescriptive easement to the centerline road is contrary to law and against the clear weight of the evidence. The Lukers -assert County failed to sustain its burden of proving all elements necessary to sustain its claim of a prescriptive easement. The Lukers’ eviden-tiary materials and testimony indicated the road was private; it was constructed by A.B. Luker’s father and another neighbor for easy access to the Lukers’ property; and no official action has ever been taken to designate or open the centerline road to the public.

¶ 13 “It is well settled in this state that the continuous adverse use of a way over the land of another for a period of 15 years will ripen into an easement. In such use for 15 years the law raises a presumption of grant of easement.” Telford v. Stettmund, 1951 OK 217, ¶ 10, 235 P.2d 692, 694-695. In order to establish a public highway by prescription, County had to show the use of the public road was adverse, continuous, and exclusive throughout the prescriptive period. Mefford v. Sinclair, 1993 OK CIV APP 95, ¶ 19, 859 P.2d 1127, 1130.

¶ 14 County put on evidence that the cen-terline road has been on County’s road inventory since 1961; it is open to the public; and the road has been publicly maintained. County contends this evidence supports the trial court’s finding of a prescriptive easement. The Lukers contend the testimony was in conflict as to whether the centerline road had been maintained by County prior to 1997.

¶ 15 Where the evidence is conflicting in an action to establish a property interest by prescription, it is an issue of fact to be determined by the trier of the facts. Arbuckle Realty Trust v. Southern Rock Asphalt Co., 1941 OK 237, ¶ 0, 116 P.2d 912. Also, in an action of purely equitable cognizance, the trial court determines the credibility of the witnesses and the weight and value to be given their testimony. James, 1999 OK CIV APP 47 at ¶ 7, 978 P.2d at 1003. Based on the testimony and evidence at trial, the trial court found the road had been in place for some fifty years and that County had been maintaining the road for some time. We think there is competent evidence, although controverted, to justify the trial court’s determination that County met the fifteen year requirement to acquire a prescriptive easement to the centerline road. Accordingly, we will not disturb such determination.

¶ 16 We do agree with the Lukers’ argument that the trial court’s order granting the prescriptive easement is legally deficient because it does not include the dimensions of the roadway. This Court has previously held if a judgment purports to transfer real property, it must describe the particulars of that estate in sufficient detail that all will know its bounds. James v. Board of County Com’rs of Muskogee, 1999 OK CIV APP 47, ¶ 14, 978 P.2d 1002, 1004. We therefore remand with directions to the trial court to determine the precise location and width of County’s prescriptive easement to the centerline road.

¶ 17 The Lukers also allege County did not have the right to perform work on the cen-terline road without their consent. However, this contention is dependant on our reversal of the trial court’s finding that County acquired a prescriptive easement. Because we affirm, this allegation of error has no merit.

¶ 18 For their final proposition, the Lukers urge the trial court had no legal basis to force them to elect their remedy. The Lukers claim at the start of trial, the trial court instructed they could proceed to trial on only one form of remedy, either injunctive relief by the court or monetary damages by the jury, but not both. The Lukers claim they elected to waive their right to proceed to jury trial on the issue of damages because of this instruction. We have searched the record carefully and fail to find this instruction. Instead, the record reflects at the inception of trial, Appellants’ counsel specifically waived a jury trial and remained silent and did not object to the statement made by County’s counsel clarifying the case would proceed on the injunctive relief and not on money damages. It was only after Appellants’ second request for a directed verdict that Appellants’ counsel made an offer of proof alleging the trial court instructed Appellants to choose their remedy and that this was error. During such offer of proof, the trial court admonished Appellants’ counsel that his characterization of the trial court’s statement was incorrect. The trial court thereafter stated to Appellants’ counsel: “You made an election to waive your right to proceed to jury trial on the issue of damages and proceed solely on the injunctive basis of asking affirmative relief of this court. That’s what you did.”

¶ 19 Based on the record before us, we find the Lukers voluntarily waived their right to proceed on the issue of damages to a jury. Accordingly, they cannot now complain about the trial court’s actions in proceeding with the trial of their claim for injunctive relief only.

¶ 20 For the reasons set forth above, the trial court’s judgment is affirmed in part and remanded in part with instructions to identify with particularity the parameters and boundaries of the County’s prescriptive easement to the centerline road.

¶ 21 AFFIRMED IN PART AND REMANDED with directions to the trial court.

HANSEN, J., sitting by designation, and JOPLIN, V.C.J., concur.

      . Section 601 A. provides, in relevant part:
      A. The county highway system shall be composed of all public roads within any county, less any part of any road or roads which may be designated as a state highway by the State Transportation Commission. It shall be the duly of the board of county commissioners in each county to construct and maintain as county highways those roads which best serve the most people of the county..... The boards of county commissioners of the various counties shall have exclusive jurisdiction over the designation, construction and maintenance and repair of all of the county highways and bridges therein.


author: BAY MITCHELL, Judge:

text:
    2002 OK CIV APP 109
    Kathy A. FIELDS, Plaintiff/Appellee, v. INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA COUNTY, Oklahoma, a/k/a Tulsa Public Schools, Defendant/Appellant.
    No. 96,782.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 4, 2002.

      J. Douglas Mann, Jerry A. Richardson, Rosenstein, Fist & Ringold, Tulsa, OK, for Defendant/Appellant.
    Maynard I. Ungerman, Joshua L. Schwartz, Law Offices of Maynard I. Unger-man, Tulsa, OK, for PlaintiffiAppellee.
   Opinion by

BAY MITCHELL, Judge:

¶ 1 Appellant Independent School District No. 1 of Tulsa County, Oklahoma (“School District”) appeals the District Court of Tulsa County’s decision to reinstate Appellee Kathy A. Fields (“Fields”), a career teacher, to employment with the Tulsa School District. Given the great deference with which we review the trial court’s findings of fact, as well as the absence of any legal error herein, we are constrained to affirm the trial court’s decision to reinstate Fields. After de novo review of the jurisdictional question involved in Fields’s attorney fee award, we reverse.

Factual and Procedural Background

¶ 2 Fields is a career teacher with Tulsa Public Schools who has taught social studies at Central High School since 1993. Dr. Nil-da Reyes became principal of Central High School in January, 2000. Prior to 2000, Fields, on her annual evaluations, received ratings of “commendable” (the highest rating possible) in all twenty-nine areas of performance, with the exception of the 1996-97 and 1997-98 school years, when Fields received a “needs to improve” rating in one particular area: timely arrival and departure from school.

¶ 3 Fields underwent her first annual review with Dr. Reyes on April 27, 2000. Dr. Reyes, along with assistant principal Jean Keeton, had observed Fields’s classroom several times prior to that date. On that evaluation, Fields received twelve “satisfactory” ratings and seventeen “needs to improve”, ratings. She did not receive a single “commendable” mark. Dr. Reyes noted the following problems with Fields’s performance: Fields remained at her desk and did not walk around the room while teaching; there was an overall lack of structure; students talked and slept during class; on one occasion students watched an episode of the “Sally Jesse Raphael” television show during class; and Fields spoke to the students as if. they were children. Written at the bottom of the evaluation form is Dr. Reyes’s recommendation that Fields attend an ITI or discipline workshop during the summer. Dr. Reyes did not recommend a plan of improvement for Fields at that time.'

¶4 Fields did not attend any workshops over the summer as suggested.

¶ 5 On November 13, 2000, during the new school year, Dr. Reyes again reviewed Fields’s performance. This time, she rated Fields “satisfactory” in twelve categories, “needs to improve” in fourteen, and “unsatisfactory” in three: preparation, routine, and lesson plans. In addition to repeating some of the complaints from her April 2000 review (students talking in class, lack of structure), Dr. Reyes noted in the November evaluation that Fields’s classroom was dirty and that Fields had failed to turn in either her syllabi or her attendance records despite several requests. Dr. Reyes recommended the formation of an assistance committee to help Fields, and noted that Fields had not. followed Dr. Reyes’s April, 2000 recommendation that Fields attend a classroom discipline workshop. The November 2000 evaluation was based on three observations of Fields’s classroom: one by Dr. Reyes, one by assistant principal Keeton, and one by assistant principal Battles.

¶ 6 The day after the November evaluation, Dr. Reyes issued a Job Targets Report to Fields. A Job Targets Report is a written document designed to advise teachers of the deficiencies in their performance, to specify the improvement required and the assistance to be provided, and to establish a target date for improved performance. The following instructions appear on the face of the Job Targets Report:

Any “Unsatisfactory” rating on the TEACHER’S CONFIDENTIAL EVALUATION requires that the principal complete a JOB TARGETS REPORT specifying what the teacher must do to overcome the indicated deficiency. For a “Needs to Improve” rating, the JOB TARGETS REPORT is optional unless requested by the teacher. The JOB TARGETS REPORT may also be used alone to point out a single area of unsatisfactory performance and give instructions for correcting the problem. Job targets are to be stated in brief, specific terms such as the following: “To increase students’ interest and improve classroom control by (a) carefully outlining all activities one week in advance, (b) dividing each class period into two or more activities, and (c) supplementing the textbook with filmstrips, games, recordings and other media as suggested by the curriculum supervisor.”

¶ 7 The Job Targets Report issued to Fields on November 14, 2000, stated Fields’s job targets in the following terms:

Your evaluation dated November 13, 2000, has the following Need to Improve:
# 3, # 4 (discipline, learning environment)
# 8, # 9, # 10, # 11 (objectives, sequence)
# 14, # 15, # 16, # 17, # 18 (models, monitors, adjusts, guides, provides)
# 27, # 28, # 29 (interpersonal skills)
Your evaluation dated November 13, 2000, has the following unsatisfactory:
#1, #2, #5 (preparation, routine, lesson plans)
Need a syllabus for the 1st semester by November 17, 2000, this was due Labor Day weekend. Need the 2nd semester •syllabus by January 2, 2001. Refer to faculty meeting for syllabus component. I am also requesting that an assistance team meet with Kathy Fields no later than December 1, 2000, to establish guidance, structure, and recommendations for Kathy Fields.
You have been with Tulsa Public Schools since November 9, 1990. Improvement should be noted immediately.

¶ 8 The Assistance Team consisted of Principal Reyes; Assistant Principal Keeton; Juanita Williams, a Social Studies Coordinator for the Tulsa School District; Linda Woods, a teacher from Central High (whom Fields appointed to the team); and Jennifer Howland, another teacher from Central High. The Assistance Team met with Fields on November 29, 2000, and gave Fields a written list specifying the following required areas of improvement:

Organization/Classroom Management:
Preparation
Routine
Discipline
Instructional Effectiveness
Establish objectives
Sequence
Involve all learners
Model/mentor/adjusVguide
Professional Growth and Responsibility
Professional Development
Interpersonal skills
Interact in a positive and professional manner

¶ 9 The Assistance Team members made suggestions to Fields and provided her with materials they thought might be useful. They also helped Fields organize and clean her classroom. The members met with Fields again on January 18, 2001, to inform her of their observations and the deficiencies in her job performance. Fields reportedly was resistant and uncooperative during this meeting.

¶ 10 On January 31, 2001, Dr. Reyes met with Fields and gave her a memorandum to indicate closure of the Job Targets Report period and the dissolution of the Assistance Team. Dr. Reyes concluded that Fields had failed to meet any of the objectives of the Job Targets Report.

¶ 11 Fields’s final evaluation on March 21, 2001, reflected no improvements from the November evaluation. Dr. Reyes did not recommend a new Job Targets Report at that time, believing it would be futile. Instead, Dr. Reyes recommended that Fields’s contract be terminated.

¶ 12 Dr. David Sawyer, the Superintendent of Tulsa School District, submitted a written recommendation to the Board of Education that Fields be “nonreemployed” for the 2001-2002 school year on the following statutory grounds: (1) willful neglect of duty, (2) incompeteney, (3) repeated negligence in performance of duty, (4) instructional ineffectiveness, and (5) unsatisfactory teaching performance. After a due process hearing, the school board decided to “nonreemploy” Fields on the grounds of willful neglect of duty, repeated negligence in the performance of duty, instructional ineffectiveness, and unsatisfactory teaching performance. The board concluded that the evidence was insufficient to establish the fifth asserted ground, incompetency. Fields timely filed a request for a district court trial de novo pursuant to Section 6-101.26 of the Teacher Due Process Act of 1990, 70 O.S.2001 § 6-101.20, et seq.

¶ 13 The trial court found that School District failed to prove by a preponderance of the evidence that it adequately complied with the requirements of the admonishment statute, 70 O.S.2001 § 6-101.24. The court reasoned that because School District’s written instructions regarding the ways in which Fields needed to improve lacked specificity, and the assistance Fields received to help her improve her teaching methods was insufficient, the purpose of the admonishment statute was not met.

¶ 14 In addition to finding that School District failed to satisfy the procedural prerequisites to Fields’s “nonreemployment”, the trial court also concluded that the evidence presented at the trial de novo was insufficient to establish negligence in performance of duty, willful neglect of duty, incompetency, instructional ineffectiveness, or unsatisfactory teaching performance. The court found that there was no evidence to show that Fields was, in fact, expected to attend workshops over the summer of 2000 or that her continued employment in any way hinged on such attendance. In addition, the court determined that Fields was not advised that her syllabi for the spring semester of 2001 were insufficient until after Dr. Reyes decided to recommend Fields for “nonreemployment”. The court further found many of the complaints about Fields’s perceived failings, if communicated to Fields at all, were never made in writing as required by 70 O.S.2001 § 6-101.24, and were rarely contemporaneous with her alleged misconduct. Accordingly, based on the evidence introduced on behalf of Fields, especially the testimony of her former students as to her teaching skills, the trial court found that School District failed to prove by a preponderance of the evidence that Fields was guilty of willful neglect of duty, repeated negligence in performance of duty, incompetency, instructional ineffectiveness. or unsatisfactory teaching performance. The trial court thus reversed the school board’s decision to “nonreemploy” Fields and ordered Fields’s reinstatement with full employment status and benefits. Thereafter, the trial court awarded Fields $10,809.57 in prevailing party attorney fees and costs pursuant to 70 O.S.2001 § 6-101.27(D). This appeal by the Tulsa School District followed.

I.

¶ 15 “Because the Teachers Due Process Act statutorily modifies' the common law at-will employment doctrine, we review the findings of fact of the trial court as if it were a law action tried to the court and give those findings of fact the same great deference we give those rendered by a jury.” Andrews v. Independent Sch. Dist. No. 57, 2000 OK CIV APP 103, ¶ 3, 12 P.3d 491, 493. The trial court’s judgment in such matters “will not be disturbed on appeal in the absence of legal errors, if there is any competent evidence reasonably tending to support the trial court’s conclusion.” Hawzipta v. Independent Sch. Dist. No. 1-004. of Noble County, 2000 OK CIV APP 113, ¶ 10,13 P.3d 98, 100-01. “We do not reweigh the trial court’s findings of evidentiary matters.... Even though the evidence may conflict, the appellate court is bound by the fact finder’s assessment of it, absent legal error. A verdict which is supported by conflicting but competent evidence will not be disturbed on appeal.” Id., citing Mitchell v. Ford Motor Credit Co., 1984 OK 18, 688 P.2d 42.

¶ 16 Subsection 6-101.24(D) of the Teacher Due Process Act provides that a school administrator who identifies the sort of poor performance on the part of a career teacher that may lead to a termination recommendation shall “[a]dmonish the teacher, in writing, and make a reasonable effort to assist the teacher in correcting the poor performance or conduct” as well as “[e]stablish a reasonable time for improvement, not to exceed two (2) months, taking into consideration the nature and gravity of the teacher’s performance or conduct.” 70 O.S.2001 § 6-101.24(A). “The purposes of the admonishment statute are to prevent arbitrary and unreasonable teacher evaluations by principals and to provide assistance for teachers with remedia[ble] classroom problems.” Jackson v. Independent Sch. Dist. No. 16 of Payne County, Okla., 1982 OK 74, ¶ 4, 648 P.2d 26, 29.

¶ 17 Mere technical violations of the admonishment statute do not necessarily result in a denial of due process, however. For example, in House v. Independent Sch. Dist. No. 1-29 of Muskogee County, 1997 OK 35, 939 P.2d 1127, the Supreme Court rejected a teacher’s claim that the principal’s failure to indicate a reasonable time for improvement in the written admonishment rendered it invalid and resulted in a denial of due process where the teacher was in fact given more time in which to improve than the two-month statutory maximum. Id., ¶¶ 13-14, 939 P.2d at 1130-31.

¶ 18 Although we agree that, on its face, the Job Targets Report issued to Fields on November 14, 2000 lacks the sort of specificity required by the form’s own written instructions, the admonishment statute merely requires that the administrator “[a]d-monish the teacher, in -writing, and make a reasonable effort to assist the teacher in correcting the poor performance or conduct”; it does not dictate how specific the admonishment must be. Furthermore, all Fields needed to do to discover the more precise nature of the observed problems with her teaching performance was to cross-reference the numbers on the Job Targets Report with the entries on her evaluation form. It is frankly difficult to see how the Job Targets Report is not specific enough to put Fields on sufficient notice of the nature of her perceived deficiencies so that she might strive to correct them.

¶ 19 Even if we were to hold that the trial court erred in concluding that School District violated the admonishment statute by not being specific enough in its criticism of Fields’s performance, such error would be harmless, because in addition to the due process violation, the court also found insufficient evidence to satisfy any of the asserted statutory grounds for Fields’s “nonreemployment”. Given the great deference with which we review the trial court’s findings of fact in such matters, and given her students’ testimony that Fields was in fact an effective teacher, there is competent evidence to support the trial court’s reinstatement decision and we must accordingly affirm.

H.

¶ 20 As for the trial court’s decision to award attorney fees to Fields, School District charges that it should be reversed because the trial court lacked jurisdiction under Oklahoma’s Judgments Against Municipalities Act, 62 O.S.2001 § 361, et seq. (“JAMA”), to enter such a judgment in the absence of proof of School District’s financial condition. Although School District did not raise this argument before the trial court, it is entitled to raise it for the first time on appeal because it involves a question of subject matter jurisdiction. Shaffer v. Jeffery, 1996 OK 47, ¶ 7, 915 P.2d 910, 913. We review de novo questions involving the jurisdictional power of the trial court to act. Jackson v. Jackson, 2002 OK 25, ¶ 2, 45 P.3d 418, 422.

¶ 21 JAMA provides in pertinent part:

Before final judgment in any suit based on contract ... shall be rendered against any municipality by any court of any county in the State of Oklahoma, except in proceeding to refund any indebtedness of said municipality, proof shall be made to the court, of the existence, character and amount of the outstanding legal indebtedness of said municipality....
* ⅜ *
No judgment shall be rendered against any municipality by any court until the provisions of Section 2 hereof, have been fully complied with. Any judgment rendered in violation of the provisions of this act shall be void and of no effect.

62 O.S.2001 §§ 362, 363 (emphasis added). The Supreme Court has found these provisions state unequivocally that a judgment rendered against a municipality absent the required financial evidence under 62 O.S.2001 § 362 is a nullity. Valley Vista Dev. Corp., Inc. v. City of Broken Arrow, Okla., 1988 OK 140, ¶ 9, 766 P.2d 344, 348. Fields contends her attorney fee award is valid despite the fact that she did not offer proof of School District’s outstanding legal indebtedness under JAMA because (1) this is not an action grounded in contract; (2) School District is not a self-insurer and is fully covered by liability insurance; and (3) the Teacher Due Process Act is a valid act of the Legislature.

¶ 22 The claim that this action is not based on contract rings hollow. First, Fields sought a trial de novo of her dismissal based on her belief that the school board violated the Teacher Due Process Act in not renewing her teaching contract. Second, Fields is entitled to the fall protection of the Teacher Due Process Act because she is a “career teacher” in that she “has completed three (3) or more consecutive complete school years in such capacity in one school district under a written teaching contract.” 70 O.S.2001 6-101.3. Thus, without her underlying employment contract, Fields would not be entitled to the protections of the Teacher Due Process Act, including trial de novo in district court. Finally, even if this action were classified as quasi-contractual in nature, judgments against school districts based on quasi-contractual claims are likewise unauthorized absent proof of the school district’s outstanding legal indebtedness pursuant to § 362 of JAMA. See Clay v. Independent Sch. Dist. No. 1 of Tulsa County, 1997 OK 13, 935 P.2d 294.

¶ 23 Moreover, even if the underlying action is neither contractual nor quasi-contractual, JAMA applies nonetheless because its financial disclosure provisions have been incorporated into Oklahoma’s Governmental Tort Claims Act (“GTCA”), 51 O.S. 2001 § 151 et seq. Liability in tort of the state or its political subdivisions, including school districts, is exclusive under the GTCA. The GTCA defines “tort” as “a legal wrong, independent of contract, involving violation of a duty imposed by general law or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the state or an employee acting within the scope of employment.” 51 O.S.2001 § 152(11) (emphasis added). The “Enforcement of Judgments” subsection of the GTCA provides that:

For the payment of any judgment obtained under the provisions of this act against a political subdivision that is a self-insurer or not fully covered by liability insurance, the manner of paying a money judgment shall be as follows. Proof of indebtedness, as required in Sections 362 through 364 of Title 62 of the Oklahoma Statutes and evidence of any estimated tax levy or increases necessary to reimburse the sinking fund for the purposes of the judgment as provided in Section 431 of Title 62 of the Oklahoma Statutes, and other evidence or statements which the court may require, shall be made to the court before final judgment is rendered....

51 O.S.2001 § 159(C) (emphasis added). Accordingly, even if this action sounds in tort rather than contract or quasi-contract, the indebtedness disclosure provisions of JAMA apply if School District is “a self-insurer or not fully covered by liability insurance.”

¶ 24 On appeal, the only evidence to which Fields points in support of her claim that School District is fully covered by liability insurance is testimony by counsel for School District during the attorney fees hearing in an entirely different action in which School District sought attorney fees from a teacher. This is plainly insufficient to establish that School District is fully insured in the instant action. Fields can point to no record evidence to substantiate her claim that School District has full insurance coverage in this matter. Accordingly, even if this action sounded in tort rather than contract, the proof-of-indebtedness provisions of JAMA apply, and the district court was without jurisdiction to issue an attorney fees judgment against School District without first requiring Fields to show School District’s indebtedness pursuant to 62 O.S.2001 § 362, or that School- District is not self-insured or is fully covered by liability insurance.

¶25 Article 10, § 26 of the Oklahoma Constitution prohibits school districts from becoming indebted in an amount exceeding annual income without the assent of three-fifths of the voters. Together, Article 10, § 26 of the Oklahoma Constitution and JAMA serve to insure that school districts operate on a cash basis each year. See Valley Vista, ¶ 13, 766 P.2d at 348-49; Independent Sch. Dist. No. 1 v. Howard, 1959 OK 17, ¶ 6, 336 P.2d 1097, 1098. In support of her final defense of the legitimacy of her attorney fees award, Fields cites Smartt v. Board of County Conim’rs of Craig County, 1917 OK 590, ¶ 20, 169 P. 1101, 1104 which held that Article 10, § 26 of the Oklahoma Constitution does not prohibit schools from becoming indebted to pay those liabilities “imposed by the superior power of the sovereignty as expressed in the Constitution or valid acts of the Legislature.” Fields reasons that because the Teacher Due Process Act is a valid act of the Legislature, her attorney fees award falls within the Smartt exception and Tulsa School District should be required to pay the award even though it is not a budgeted expense in the current school year.

¶ 26 In making this argument, Fields ignores City of Del City v. FOP, Lodge No. 114, 1993 OK 169, 869 P.2d 309, in which the Supreme Court reexamined and narrowed its holding in Smartt. In Del City, the Supreme Court held that “[a] legislative act cannot trump a constitutional provision and create a municipal liability that necessarily requires unconstitutional funding practices.” Id. at ¶36, 869 P.2d at 318. The Court concluded that cases decided after Smartt generally involve two distinct categories of municipal financial commitments:

(1) those obligations imposed upon the municipality by either the Federal or Oklahoma Constitution, and (2) those obligations which are mandated not by the Constitution, but are imposed either by the legislature or by a voluntary contract entered into between the parties. Those obligations which fall under the first category are not limited or prohibited by Section 26. Those which fall into the second category are controlled by Section 26 and are thus unconstitutional.

Id. at ¶ 24, 869 P.2d at 315(emphasis added). Accordingly, if a school district’s indebtedness results from an obligation imposed by an act of the Legislature or by a voluntary contract, the Smartt /Section 26 exception to the cash-only rule does not apply and the school may not become indebted to meet that obligation. See Baylis v. City of Tulsa, 1989 OK 90, 780 P.2d 686 (holding that expenses incurred by the city in voluntarily obligating itself to a five percent pay raise for certain personnel fall within the statutory jurisdictional mandates of 62 O.S.2001 §§ 362 and 363 and require that plaintiff prove the municipality’s ability to pay the claim at issue in order that any judgment not exceed the constitutional debt limitations); Protest of Carter Oil Co., 1931 OK 15, 296 P. 485 (holding that in spite of a legislative enactment requiring transportation of school children to school, and a constitutional provision requiring a public school system, school district’s obligation to pay for school buses was not exempt from the indebtedness prohibition of Section 26 because the appropriation, although involuntary under an act of the Legislature, was not mandatory under the Constitution).

¶ 27 Applying Del City to the facts at bar, it goes without question that the Teacher Due Process Act is an act of the Legislature. As such, the attorney fees award against School District falls into the second category of financial obligations outlined in Del City— those imposed by acts of the Legislature controlled by the indebtedness prohibition of Article 10, § 26. This holding is consistent with the policy announced in Del City that courts must narrowly construe the Smartt/ Section 26 exception and “closely scrutinize any claim which attempts to gain protection from the exception.” Id. at ¶¶31, 38, 869 P.2d at 317-18.

¶ 28 That being the case, on remand, as a prerequisite to the trial court entering a valid enforceable attorney fees order against School District, it must be shown on the record that: (1) School District is fully covered for such judgment by liability insurance; or, (2) if School District is not fully covered by insurance or is self-insured then 62 O.S. § 362 must be complied with by showing School District’s outstanding legal indebtedness. The purpose is to determine the method of compliance with 62 O.S. § 365.5. Generally speaking, this statute and the cases construing it provided that a judgment is to be paid by tax levies, one-third each year for three years, unless there are sufficient funds in a sinking fund out of which the judgment can be paid in a lump sum. See Russell v. Board of County Commissioners of Carter County, 2000 OK CIV APP 21, 1 P.3d 442, 445; and, Oklahoma Attorney General Opinion, 00-06, 2000 OK AG 60. Based on the evidence presented as required by § 362, the trial court must determine how the attorney fee judgment will be paid by School District.

Conclusion

¶ 29 As stated above, the trial court’s order reinstating Fields is affirmed. The order awarding attorney fees and costs is, for the reasons set forth, reversed. This case is remanded to the trial court for further proceedings on the attorney fee issue consistent herewith.

¶ 30 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HANSEN, P.J., and ADAMS, J., concur.

      . " 'Career teacher' means a teacher who has completed three (3) or more consecutive complete school years in such capacity in one school district under a written teaching contract.” 70 O.S.2001 § 6-101.3.

      . " 'Nonreemployment’ means the nonrenewal of an administrator’s or teacher’s contract upon expiration of the contract” whereas " '[d]ismissal' means the discontinuance of the teaching service of an administrator or teacher during the term of a written contract.” 70 O.S.2001 § 6-101.3.

      . For example, the statement on Fields’s Job Targets Report that "[y]our evaluation dated November 13, 2000 has the following unsatisfactory: # 1, # 2, # 5 (preparation, routine, and lesson plans)” corresponds to "1. Preparation— plans for delivery of the lesson relative to short term and long term objectives; 2. Routine — uses minimum class time for non-instructional routines thus maximizing time on task; 5. Lesson Plans — writes daily lesson plans designed to achieve the identified objectives” on Fields’s evaluation, where the performance necessary to satisfy each category is clearly spelled out.