ORDER ADOPTING REVISIONS IN AND REPUBLISHING
PORTIONS OF RULE 1.13, RULE 1.15, RULE 2.2,
RULE 2.3, RULE 3.2, RULE 4.3, RULE 5.2
AND RULE 9.7(D) OF THE
RULES OF THE COURT OF CRIMINAL APPEALS
¶1 Pursuant in part to the provisions of Sections 1051(b) of Title 22 of the Oklahoma Statutes, and to conform to Section 1089(B) of Title 22 of the Oklahoma Statutes, we hereby revise, adopt, promulgate and republish portions of Rule 1.13, Rule 1.15, Rule 2.2, Rule 2.3, Rule 3.2, Rule 4.3, Rule 5.2, and Rule 9.7(D) of the Rules of the Court of Criminal Appeals, 22 O.S.Supp.1996, Ch.18, App. This revision shall become effective on the date of this Order. In the rules section itself, additions are indicated by highlight; there are no deletions.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 13th day of March, 1997.
/s/
CHARLES S. CHAPEL, Presiding Judge
/s/
RETA M. STRUBHAR, Vice Presiding Judge
/s/
GARY L. LUMPKIN, Judge
/s/
JAMES F. LANE, Judge
/s/
CHARLES A. JOHNSON, Judge
ATTEST:
/s/ James Patterson
Clerk
D. Supplementation of Record/Discovery.
Rule 1.13. Definitions
A. Judgment and Sentence. [no change].
B. Original Record. [no change].
C. Transcript of Evidence. [no change].
D. Notice of Intent to Appeal.
E. Designation of Record. [no change]
F. Record on Appeal. The record on appeal consists of the Petition in Error, three (3) certified copies of the original record and, the original and two certified copies of the transcript of evidence and the exhibits incorporated therein, if any portions of the proceedings or evidence were designated for inclusion. In capital cases, the record on appeal consists of the Petition in Error; four (4) certified copies of the original record; and the original and three (3) certified copies of the transcript of evidence and the exhibits incorporated therein. See Section 1089(B) of Title 22.
G. Certiorari on Plea of Guilty or Nolo Contendere. [no change].
H. PostConviction Remedies. [no change].
I. Capital Cases. Any case (including post-conviction applications) in which the death penalty has been imposed. See Section IX of these Rules.
J. Resentencing Appeal. [no change].
K. Tendered for Filing. [no change].
Rule 2.3. Time for Completion of Record
A. Ready for Transmission. [no change].
B. Duties of Trial Court Clerk on Completion of Record. [no change].
C. Duty of Clerk of Court of Criminal Appeals. The Clerk of this Court shall, within ten (10) days after the receipt of the trial court clerk's notification of the completion of record, issue a notice to transmit two (2) certified copies of the original record and the original and one (1) certified copy of the transcripts to the Clerk of the Court of Criminal Appeals and one certified copy of the original record and transcripts, to include copies of exhibits, to either the Oklahoma Indigent Defense System, pursuant to Section 1362 of Title 22, or the retained or other appointed counsel of record on appeal. In capital post-conviction cases in which the Oklahoma Indigent Defense System or another attorney has been appointed to represent an indigent defendant in an application for post-conviction relief, the Clerk shall include in the notice to the district court clerk that an additional certified copy of the record on appeal is to be transmitted to the Oklahoma Indigent Defense System or other attorney. See Sections 1054 and 1089(B) of Title 22. The Clerk of this Court shall send copies of the Notice to Transmit to all parties or their counsel (the appellate attorney, the district attorney and the attorney general). See Section 1054 of Title 22. Upon receipt of the records and transcripts, the Clerk of this Court shall deliver one (1) certified copy of the record and transcripts to the Attorney General, or attorney representing the State.
Rule 2.2. Form and Contents of Record.
A. Duties of Clerk to Assemble Record. [no change]
B. Duties of Court Reporter to Assemble Exhibits.
(1) [no change]
(2) The original transcript, indexed and certified as correct, together with two (2) certified copies (original and three (3) certified copies in capital cases), and attached exhibits or photos or copies of exhibits, in volumes not to exceed three hundred (300) pages of text per volume, shall be filed with the court clerk in the trial court by the court reporter within sufficient time to allow the trial court clerk to file the notice required by Rule 2.3(A) within ninety (90) days of Judgment and Sentence in misdemeanor and regular felony appeals, and within six (6) months in capital appeals.
(3) [no change].
(4) [no change].
C. Transcript Not Available. [no change].
D. Transcript Available. [no change].
E. Form of Certification for Original Record in Trial Court. The original record to be filed in this Court must be certified by the clerk of the trial court utilizing the form set out in Section XIII, Form 13.9.
Rule 3.2. Instruments to be Filed to Complete the Appeal.
A. Petition in Error. An original and seven (7) copies.
B. Original Record. Three (3) certified copies, two (2) to be sent to the Clerk of the Court of Criminal Appeals and one (1) to either the Oklahoma Indigent Defense System, pursuant to Section 1362 of Title 22, or retained or other appointed counsel of record on appeal. In capital cases in which an application for post-conviction relief will be filed, and in which the Oklahoma Indigent Defense System or another attorney has been appointed for that purpose, another copy in addition to the copies specified above shall be sent to the Oklahoma Indigent Defense System or the attorney appointed. See Section 1089(B) of Title 22.
C. Transcript of Evidence.
(1) An original and two (2) certified copies of all designated transcripts, the original and one (1) certified copy to be sent to the Clerk of the Court of Criminal Appeals and one (1) certified copy to either the Oklahoma Indigent Defense System, pursuant to Section 1362 of Title 22, or retained or other appointed counsel of record on appeal. In capital cases in which an application for post-conviction relief will be filed, and in which the Oklahoma Indigent Defense System or another attorney has been appointed for that purpose, another copy in addition to the copies specified above shall be sent to the Oklahoma Indigent Defense System or the attorney appointed. See Section 1089(B) of Title 22.
(2) [no change].
(3) [no change].
D. Transmission of records. [no change].
E. [no change].
Rule 1.15. Use of Court Reporter's Transcripts and Recordings by Appellate Indigent Defender
In order to expedite the criminal appeal process and to prevent unnecessary expense to local court funds, in indigent criminal appeals assigned to an appellate indigent defender in accordance with Section 1051 of Title 22, the following provisions are made:
A. When the court reporter transcribes the trial transcript of testimony for indigent defendants, an original and two copies (original and three (3) copies in capital cases) are to be filed in the trial court clerk's office in accordance with Rule 3.2(C).
B. [no change].
C. [no change].
D. [no change].
Rule 4.3. Time for Lodging Appeal; Record of Proceedings; Contents of Petition in Error; Briefs.
A. In order to perfect a certiorari appeal in convictions where the death penalty is not imposed, the petitioner must ensure the following record on appeal is completed in accordance with Rules 2.2, 2.3 and 2.4 and filed with the Clerk of this Court within ninety (90) days from the date the trial court ruled on the application to withdraw the plea. In convictions where the death penalty is imposed, the petitioner must file the following items within six (6) months from the date the trial court ruled on the application to withdraw the plea in accordance with Rules 9.1, 9.2 and 9.3 .
(1) A petition for a writ of certiorari;
(2) Two (2) certified copies of the original record (three (3) certified copies in capital cases) which shall include a copy of the order denying the application to withdraw plea; and,
(3) The original and one copy of the transcript of the proceedings in which the plea of guilty or nolo contendere was taken (not applicable if a court reporter was waived as set forth in Form 13.10), and the evidentiary hearing on the application to withdraw plea. In capital cases, petitioner shall ensure that the original and three (3) copies of the transcript of proceedings are filed and sent to the appropriate parties. See Section 1089(B) of Title 22, Rule 3.2(C).
The above items shall be filed in accordance with Rule 2.2, 2.3, and 2.4 .
B. [no change].
C. Contents of Petition. [no change].
D. Brief in Support. [no change].
E. Answer Brief. [no change].
Rule 5.2. Appeal from Final Judgment
A. Final Judgment on PostConviction Application. The appeal to this Court under the PostConviction Procedure Act constitutes an appeal from the issues raised, the record, and findings of fact and conclusions of law made in the district court in non-capital cases. See Yingst v. State, 480 P.2d 276, 277 (Okl.Cr.1971). For appeal out of time see Rule 2.1(E).
B. Stay of Execution of Judgment Pending Appeal. The district court may stay the execution of its judgment upon the filing of a verified motion to stay execution of the judgment pending appeal within ten (10) days from the date of the entry of the judgment. If the motion is granted, the party granted the stay shall file a certified copy of the petition in error in the district court within five (5) days after the filing of the petition in error in this Court to ensure the district court is notified of the perfecting of the appeal. See Section 1087 of Title 22. For capital cases, see Section IX and Section 1089 of Title 22.
C. Petition in Error, Briefs and Record. [no change].
Rule 9.7. PostConviction Procedures in Capital Cases.
A. Application. [no change].
B. Issues raised. [no change].
C. Good faith filing. [no change].
D. Supplementation of Record/Discovery.
(1)(a) The record on capital post-conviction shall consist of the original application for post-conviction relief, the record on appeal as defined by Rule 1.13 (F), and any affidavits and material filed along with the original application. Affidavits which are timely filed in support of a proposition of error will be reviewed and if this Court determines that the requirements of Section 1089(D) of title 22 have been met and issues of fact must be resolved by the district court, it shall issue an order remanding to the district court for a hearing on the merits of the claim raised in the application.
(b) Supplementation of the Record on capital post-conviction proceedings is limited to materials supporting matters which were not and could not have been raised in a direct appeal; and support the conclusion the outcome of the trial would have been different, or that the defendant is factually innocent. See Section 1089(C) of Title 22. Supplementation by the appellee is also permitted in accordance with this Rule.
(2)Requests for discovery by either party shall be filed with this Court before or at the time the application for post-conviction relief is filed. Discovery requests filed after the application is filed shall not be considered.
(3)In considering such discovery requests, this Court shall presume the parties complied with all discovery rules issued by the district court at the time of trial and in accordance with Sections 2001 and 2002 of Title 22. Consequently, requests making allegations to the contrary shall be supported with affidavits, describing as particularly as possible the material sought to be discovered, and why such material was not supplied at the time of trial. Should these affidavits be sufficient to raise a substantial question of compliance with earlier discovery orders, and the material being sought would have resulted in a different outcome at trial, this Court may direct a response from the opposing party showing cause why a discovery order should not be issued.
(4)All discovery requests shall be adjudicated based on the pleadings; provided, however, that if failure to comply with a discovery order is the grounds for an issue raised in the application, this Court may remand pursuant to Section 1089(D)(5) of Title 22 for an evidentiary hearing.
(5)A request for an evidentiary hearing is commenced by filing an application for an evidentiary hearing, together with affidavits setting out those items alleged to be necessary for disposition of the issue petitioner is advancing. The application for hearing and affidavits submitted by the petitioner shall be cross-referenced to support the statement of specific facts required in the application for post-conviction relief. See Section 1089(C)(2) of Title 22. The application for an evidentiary hearing shall be filed together with the application for post-conviction relief. See Section 1089(D)(2) of Title 22. The application for hearing and affidavits must contain sufficient information to show this Court by clear and convincing evidence the materials sought to be introduced have or are likely to have support in law and fact to be relevant to an allegation raised in the application for post-conviction relief.
(6) If this Court determines from the application and affidavits that the requirements of Section 1089(D) of Title 22 have been met and issues of fact must be resolved by the district court, it shall issue an order remanding to the district court for an evidentiary hearing. The order shall set out the issues to be resolved; define the scope of the hearing; and define the scope of discovery requirements and subpoenas for essential witnesses.
(7)Upon remand, the district court shall not permit any amendments or supplements to the issues remanded except upon proper motion of either party and order by this Court. See Section 1089(D)(5) of Title 22.
(a) This Court shall not issue such order remanding for an evidentiary hearing absent a showing by the submitting party that the materials sought to be submitted could not have been previously submitted upon exercise of due diligence.
(b) Such motion for evidentiary hearing, with affidavits attached, shall constitute a certification the materials could not have been previously discovered and the request is being filed in accordance with subsection 9.7(C) of this Rule.
E. Review of Application. [no change].
F. Review after remand. [no change].
G. Subsequent application. [no change].