Tulsa Attorney BlogFinal, Uncontested Judgment Vacating a Conviction Under McGirt Is Itself Vacated 6 Months Later

Usually, When You Have a Final Unappealed Order, It’s a Done Deal

Video Transcribed: Final, unappealed judgment vacating a conviction and sentence under McGirt is itself vacated six months later. I’m Oklahoma attorney James Wirth, and we’re following a new decision in a case. This isn’t a case on appeal, it doesn’t have any precedential value, but it is good to know what’s going on in some of these lower-level courts.

Particularly, this deals with Mayes County, and the case is State versus Foster, it’s CF2015109. And that is a case where somebody, an Indian, was convicted of a crime in state court in 2016. I believe the date of the conviction is actually, January 15th of 2016, so long before McGirt was decided.

McGirt v Oklahoma then comes out, and since then, we know that the tribal reservations of the five tribes, and at least one other tribe, have not been disestablished, so the state of Oklahoma lacked jurisdiction to prosecute Native Americans for crimes occurring in those areas.

attorney in OklahomaSo he files for post-conviction relief, saying the court never had jurisdiction at all. And as acknowledged by the Oklahoma Court of Criminal Appeals in Bosse originally, the court had never had such amount of jurisdiction, that can never be waived, that can never be undone.

In fact, the court itself has a duty to ensure that it has jurisdiction for the cases before it. Nonetheless, the court later decided Wallace reversing Bosse, and re-deciding Bosse later, saying “Well, we know it’s subject matter jurisdiction issue.

We’re going to quit talking about it like that. And instead, we’re going to talk about it as a new procedural rule. And that way we have the authority, we think, to make a new rule about new procedural rules, saying they don’t have to be applied retroactively. And in this case, we’re going to elect not to apply it retroactively.”

So the defendant, in this case, had his judgment and conviction sentence all vacated on April 1st of 2021, based on agreed findings that the court didn’t have jurisdiction. All agreed because there was no argument.

The court didn’t have jurisdiction because we have this United States Supreme Court case. It’s clear-cut that he’s Indian. It’s clear-cut that it was within the historic boundaries of the tribal reservation. Pretty simple. So the case was dismissed on that. Okay?

However, after that, Bosse was redone, Wallace came out, and the State of Oklahoma filed a motion to vacate on August 23rd of 2021. That’s about four, five, nearly five months after this conviction was vacated.

The important thing about that timeframe is that after that order was entered vacating the sentence, the state did not file to appeal it. So this is a final unappealed order, and it’s fundamental, just like subject matter jurisdiction used to be so fundamental in the State of Oklahoma, it can never be waived. Court has a duty to make sure that it has it and it can be raised collaterally at any time. That used to be a fundamental rule until we decided to do things differently in Wallace.

It was also a fundamental rule that there has to be finality in cases. That once a case is done, it is done. And here we have an order vacating this, and the State of Oklahoma had an opportunity to appeal it, to keep it alive for a period of time, and they chose not to do so. So it’s a final unappealed order.

The fundamental rule is when you have a final unappealed order, that’s a done deal. You cannot attack that later. However, the State of Oklahoma does file to attack it, because now the law is looking more favorable to them based on Wallace, as opposed to the old Bosse. It’s set for hearing, and the district court grants, the state’s motion, and vacates the order vacating, essentially reinstating this sentence after it was already done away with and wasn’t appealed.

What’s interesting here though, is that at that hearing that was set, neither the attorney nor the defendant appeared. So they essentially defaulted. So if they had appeared, and they had tried to fight this, would things have gone differently? It’s hard to say.

Nevertheless, we’ve got this case where a sentence was reinstated six months afterward without it being on appeal. So it’s kind of very unusual that that would happen, but we’re seeing a lot of unusual things happening based on the state and some people’s very strong desire to prevent McGirt from undoing these things, irrespective of what historic law has been in relation to those.

So if you’re dealing with a circumstance like this, certainly you’re going to want to fight that. It’s unfortunate here because this is a case that may be one good to appeal to. But it doesn’t look like we have any participation by the attorney or the defendant in order to appeal that. But we’re looking for cases like this. If you’ve got a case like this, then certainly bring it to our attention.

If you are looking for representation, or have questions related to this type of stuff, McGirt, Wallace, and the repercussions of that, then you can talk to an attorney at my office by going online to makelaweasy.com.

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