ORDER ADOPTING REVISION IN AND RE-PUBLISHING PORTIONS OF
RULE 1.0, RULE 1.7, RULE 1.11, RULE 1.13, RULE 1.14, RULE 2.1,
RULE 2.3, RULE 2.5, RULE 3.1, RULE 3.5, RULE 3.11, RULE 3.12,
RULE 4.3, RULE 5.2, RULE 5.3, RULE 5.4, RULE 5.5, RULE 5.6,
RULE 7.2, RULE 7.4, RULE 9.3, RULE 9.7, RULE 10.1, AND RULE 10.5,
TOGETHER WITH FORM 13.2, FORM 13.4 AND FORM 13.11a
OF THE RULES OF THE COURT OF CRIMINAL APPEALS
¶1 Pursuant to the provisions of Section 1051(b) of Title 22 of the Oklahoma Statutes, we hereby revise, adopt, promulgate and re-publish portions of Rule 1.0, Rule 1.7, Rule 1.11, Rule 1.13, Rule 1.14, Rule 2.1, Rule 2.3, Rule 2.5, Rule 3.1, Rule 3.5, Rule 3.11, Rule 3.12, Rule 4.3, Rule 5.2, Rule 5.3, Rule 5.4, Rule 5.5, Rule 5.6, Rule 7.2, Rule 7.4, Rule 9.3, Rule 9.7, Rule 10.1, and Rule 10.5, together with Form 13.2, Form 13.4, and Form 13.11a of the Rules of the Court of Criminal Appeals, 22 O.S.Supp,1997, Ch. 18., App, as set out in the attachment to this order. This revision shall become effective on the date of this order and be implemented on January 1, 1998. In the rules section itself, additions are indicated by highlight; and deletions are indicated by strikethrough. (No such additions and deletions will appear in the final version of the Rules, to be published by West).
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 9th day of December, 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
RULE 1.0 IS AMENDED AS FOLLOWS:
D. Citation to the Rules of this Court shall be in the following format: Rule ___, Rules of the Court of Criminal Appeals, Title 22, Ch.18, App. (year).
RULE 1.7 IS AMENDED AS FOLLOWS:
All communications and inquiries regarding causes pending or other Court matters shall be addressed to the Clerk of the Court of Criminal Appeals, Room 1 B-2, State Capitol Building, 2300 N. Lincoln, Oklahoma City, Oklahoma 73105, or P. O. Box 53126, Oklahoma City, Oklahoma 73152. Dockets reflecting case filings and status can be viewed on the Court's web site at www.OCCA.STATE.OK.US.
RULE 1.11 IS AMENDED AS FOLLOWS:
Any person who asserts indigency and an inability to pay the filing fees required under these Rules must execute and file with the Clerk of this Court an "Affidavit in Forma Pauperis," verified before a notary public or other person authorized to administer oaths. Any false statement of a material fact therein may serve as the basis for prosecution for perjury. PROVIDED HOWEVER, a certified copy of Form 13.4 of these Rules determining indigency for the filing being submitted may be substituted. See Form 13.2.
RULE 1.13 IS AMENDED AS FOLLOWS:
C. Transcript of Evidence. The reported transcript of all proceedings designated on appeal, together with required copies or photos of all exhibits attached, prepared by a certified or licensed shorthand reporter or a reporter appointed in compliance with Section 106.3B of Title 20. But see Rule 2.2(B)(4).
RULE 1.14 IS AMENDED AS FOLLOWS:
D. Trial Counsel Responsibility
(1) The trial attorney in all cases shall be responsible or completing and filing the Notice of Intent to Appeal and Designation of Record required by Rule 1.14(C). If a defendant does not direct the trial attorney to initiate an appeal, the attorney schall prepare and file the form set out in Section XIII, Form 13.5, stating the defendant has been fully advised of his/her appeal rights and does not want to appeal the conviction.
(2) In cases in which the death penalty is imposed and the defendant is indigent for the purposes of appeal, trial counsel shall ensure the appropriate application is presented to the District Court for the appointment of counsel both for direct appeal and application for post-conviction relief. See Form 13.4.
(3) If a motion for a new trial on newly discovered evidence is filed on or after an appeal has been perfected in this court and prior to the expiration of one (1) year from the date that the Judgment and Sentence is pronounced, the motion shall be filed with the Clerk of this Court. See Section 953 of Title 22. The motion shall contail all the allegations required in the trial court and must be accompanied by affidavits and a supporting brief at the time of filing. This Court may dispose of the motion on the pleadings and the accompanying affidavits of the respective parties, by separate order or in the opinion on the appeal, may direct a response, or may remand for an evidentiary hearing in the trial court; PROVIDED HOWEVER, no motion may be filed in this Court after a decision has been rendered and the mandate is issued.
(4) If the appeal has been decided, the opinion has been rendered and the mandate has been issued by This Court, then in all other cases of newly discovered evidence, a petitioner must proceed under the provisions of the Post-conviction Proceudure Act, Sections 1080 to 189 of Title. 22.
B. Commencement of Appeal. An appeal is commenced by the trial counsel's filing with the trial court a written notice of intent to appeal and a designation of records as prescribed in Rule 1.14(CP within ten (10) days from the date the Judgment and Sentence is imposed in open court. The filing of the Notice of Intent to Appeal and Designation of Record in the District Court is jurisdictional and failure to timely file constitutes waiver of the right to appeal. A certified copy of the Notice of Intent to Appeal and Designation of Record shall also be filed by trial counsel with the Clerk of this Court within ten 910) days from the date the Notice is filed in the trial court. See rule 2.5 and Form 13.4. In addition to the above notice and designation of record, the attorney of record shall submit to the Clerk of this Court either the appropriate filing fee, pauper's affidavit or the trial court's determination of indigency for the appeal filed.
RULE 2.1 IS AMENDED AS FOLLOWS:
A. Motion for New Trial
(2) PROVIDED HOWEVER, if the motion for new trial is filed within ten (10) days of the date the Judgment and Sentence is imposed in open court, the filing of the Notice of Intent to Appeal and Designation of Record (Form 13.4) shall be stayed until the trial court rules on the pending motion. If a motion for new trial is filed within ten (10) days from the imposition of Judgment and Sentence in open court, the trial court shall hold a hearing on the motion and enter its order granting or denying the motion within thirty (30) days from the date the motion is filed. If the motion is denied, the defendant shall then file, within ten (10) days of the order denying the motion, the Notice of Intent to Appeal and Designation of Record pursuant to Rule 2.1(B). If the trial court fails to hold the hearing within thirty (30) days, the defendant may seek extraordinary relief with this Court. See Section 1054.1 of Title 22 and Steffey v. State, 916 P.2d 263 (Okl.Cr.1996).
E. Appeal out of Time
(1) If petitioner seeks an appeal out of time, the proper procedure is to file an application for Post-Conviction Relief in the District Court requesting an appeal out of time. Petitioner's right to appeal is dependent upon the ability to prove he/she was denied an appeal through no fault of his/her own. See Smith v. State, 611 P.2d 276 (Okl.Cr.1980). If the District Court recommends an appeal out of time, then Petitioner should file a petition for an appeal out of time in this Court with a certified copy of the District Court's order attached to it. This Court will consider the District Court's recommendation and issue an order granting or denying an appeal out of time. If the District Court denies the request, then Petitioner should attach a certified copy of the District Court's denial to the appeal to this Court. PROVIDED HOWEVER, if the District Court determines, pursuant to the application and provisions of Section 1085 of Title 22, that the petitioner should be resentenced, the appeal shall be perfected in the time limits prescribed by these rules commencing on the date the Judgment and Sentence is imposed in open court on resentencing.
(2) When an appeal out of time is granted by this Court in a direct appeal, a Notice of Intent to Appeal and Designation of Record in the form prescribed by Rule 1.14(C), and as set forth in Section XIII, Form 13.4, shall be filed with the clerk of the trial court and the Clerk of this Court within ten (10) days of the date of this Court's order allowing an appeal out of time. The procedure set forth in Sections II and III of this Court's Rules shall then be followed. The clerk of the District Court shall timely file a Notice of Completion or Non-Completion as set out in Rule 2.3 If the appeal record is already on file with the Court of Criminal Appeals, this should be noted in the Completion or Non-Completion. When an appeal out of time is granted in an appel under the Post-conviction Procedure Act, the required documents shall be filed within thirty (30) days of the order granting an appeal out of time in accordance with Rule 5.2(C).
(3) When an appeal out of time is granted by this Court for a certiorari appeal arising from a plea of guilty or nolo contendere, an Application to Withdraw the Plea must be filed in the trial court within ten (10) days from the date of this Court's order with a request for evidentiary hearing pursuant to Rule 4.2.
RULE 2.3 IS AMENDED AS FOLLOWS:
B. Duties of Trial Court Clerk on Completion of Record.
(4) Applicability. The requirements of this Section are applicable in all appeals except applications for extraordinary relief, Section X, wherein the Rules specifically require the petitioner to file the record with the Petition. In addition, the expedited procedure in Section VII relating to appeals of certification and reverse certification questions shall control as to those cases.
RULE 2.5 IS AMENDED AS FOLLOWS:
A. Ten-Day Requirement. Within ten (10) days from the date the Judgment and Sentence is imposed in open court or an order grants an appeal out of time, the defendant must file with the trial court clerk and the Clerk of this Court a notice of intent to appeal and designation of record in the form prescribed in Rule 1.14(C). The filing of the Notice of Intent to Appeal and Designation of Record in the District Court is jurisdictional and failure to timely file constitutes waiver of the right to appeal. A certified copy of the Notice of Intent to Appeal and Designation of Record shall also be filed by trial counsel with the Clerk of this Court within ten (10) days from the date the Notice is filed in the trial court. A copy of the designation of record must be served on the trial judge and the district attorney or, if an appeal from a municipal court of record, the municipal attorney. An additional copy must be served on, and receipt acknowledged by, the court reporter at the time of filing or immediately thereafter. See Rule 2.1(B) and Form 13.4.
RULE 3.1 IS AMENDED AS FOLLOWS:
A. Petition in Error
(3) The Judgment and Sentence imposed and the date of pronouncement together with a copy of the Judgment and Sentence attached;
RULE 3.5 IS AMENDED AS FOLLOWS:
A. Brief of the Appellant
(7) A business address and telephone number following the signature of the attorney of record or party together with the attorney's Oklahoma Bar number; and,
C. Argument and Citation of Authorities.
(1) Both parties must provide a brief argument, exhibiting a clear statement of the point of law or fact to be discussed, with a reference to the pages of the record filed and the authorities relied upon in support of each point raised.
(2) Citation to opinions of the Oklahoma Court of Criminal Appeals shall include citations to Pacific and Pacific 2nd Reporters. Citation to the Court's official paragraph citation form is allowed as a parallel cite, but not required. Effective January 1, 1998, citation to opinions of the Oklahoma Court of Criminal Appeals shall be as follows:
(A) Oklahoma Court of Criminal Appeals Opinions in which mandate has issued prior to January 1, 1954, shall include citations to Pacific and Pacific 2nd Reporters. Parallel citation to Oklahoma Criminal Reports is strongly encouraged. Examples of permissible citation form include:
(i) Hunter v. State, 97 Okl.Cr. 402, 264 P.2d 997 (1953).
(ii) Hunter v. State, 97 Okl.Cr. 402, 264 P.2d 997, 998 (1953).
(iii)Hunter v. State, 97 Okl.Cr. 402, 403, 264 P.2d 997, 998 (1953).
(iv) Hunter v. State, 264 P.2d 997 (1953).
(v) Hunter v. State, 264 P.2d 997, 998 (1953).
(B) Oklahoma Court of Criminal Appeals Opinions in which mandate has issued after January 1, 1954, shall include citations to Pacific and Pacific 2nd Reporters. Parallel citation to the official paragraph citation form of the Oklahoma Court of Criminal Appeals is strongly encouraged. Examples of permissible citation form include:
(i) Burns v. State, 1955 OK CR 46, 282 P.2d 258.
(ii) Burns v. State, 1955 OK CR 46, 282 P.2d 258, 259.
(iii) Burns v. State, 1955 OK CR 46, ¶9, 282 P.2d 258, 259.
(iv) Burns v. State, 282 P.2d 258 (Okl.Cr.1955).
(v) Burns v. State, 282 P.2d 258, 259 (Okl.Cr.1955).
In "Burns v. State, 1955 OK CR 46, ¶9, 282 P.2d 258", "1955" refers to the year the mandate issued, "OK CR" is the court designation for the Oklahoma Court of Criminal Appeals, "46" is the number of that 1955 opinion assigned by the Court, "¶9" is paragraph number 9 of the opinion as designated by the Court, and "282 P.2d 258" is the parallel citation to the Pacific 2nd reporter.
(C) An opinion cited subsequent to issuance of the mandate but prior to official publication shall include citation to the Oklahoma Bar Journal. Parallel citation to the official paragraph citation form of the Oklahoma Court of Criminal Appeals is strongly encouraged. Examples of permissible citation form include:
(i) Robinson v. State, 1997 OK CR 24, 68 OBJ 1379 (Okl.Cr.1997).
(ii) Robinson v. State, 1997 OK CR 24, 68 OBJ 1379, 1381 Okl.Cr. 1997).
(iii) Robinson v. State, 1997 OK CR 24, ¶3, 68 OBJ 1379, 1381 (Okl.Cr. 1997).
(iv) Robinson v. State, 68 OBJ 1379 (Okl.Cr.1997).
(v) Robinson v. State, 68 OBJ 1379, 1381 (Okl.Cr.1997).
(D) Opinions of the Oklahoma Court of Criminal Appeals issued for publication shall be published on the Court's World Wide Web site, www.occa.state.ok.us. Such opinions may not be cited as authority in a subsequent appellate opinion nor used as authority by a trial court until the mandate in the matter has issued. After the mandate has issued, the opinion as published on the Web site shall constitute the official paragraph citation form of the Oklahoma Court of Criminal Appeals. See Rule 1.0(D) for citation to Rules.
RULE 3.11 IS AMENDED AS FOLLOWS:
A. After an appeal has been perfected in this Court the Petition in Error has been timely filed in this Court, and upon notice from either party or upon this Court's own motion, the majority of the Court may, within its discretion, direct a supplementation of the record, when necessary, for a determination of any issue; or, when necessary, may direct the trial court to conduct an evidentiary hearing on the issue.
Rule 3.12 IS AMENDED AS FOLLOWS:
Rule 3.12. Monitoring Appeal Time; Motion to Dismiss; Notification;
Remands for Evidentiary Hearings
E. Remands for Evidentiary Hearings. If a case is remanded to the District Court for an evidentiary hearing, the order remanding shall set out with specificity the time in which the hearing must be held, the time the record must be compiled and submitted to this Court, to include the trial court's findings of facts and conclusions of law, and set a schedule for the filing of briefs by the parties. The order may also set out the responsibilities for the costs of the preparation of the record of the evidentiary hearing.
RULE 4.3 IS AMENDED AS FOLLOWS:
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. The filing of the petition for writ of certiorari is jurisdictional and failure to timely file constitutes waiver of right to appeal. 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.
RULE 5.2 IS AMENDED AS FOLLOWS:
A. Final Judgment on Post-Conviction Application. The appeal to this Court under the Post-Conviction 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 of these Rules and Section 1089 of Title 22.
C. Petition in Error, Briefs and Record.
(1) The party desiring to appeal from the final order of the District Court under Section V of these Rules and Section IX, must file a Notice of Post-Conviction Appeal with the Clerk of the District Court within ten (10) days from the date the order is filed in the District Court. See Rule 9.7 for post-conviction procedures in capital cases.
2) A a petition in error and supporting brief, WITH A CERTIFIED COPY OF THE ORDER ATTACHED must be filed with the Clerk of this Court. If the post conviction appeal arises from a misdemeanor or regular felony conviction, the required documents must be filed within thirty (30) days from the date of the final order of the District Court is filed with the Clerk of the District Court. If post-conviction appeal application is from a capital conviction, the documents must be filed within the time set in Section 1089 of Title 22 and Rule 9.7.
(3) The brief shall not exceed thirty (30) typewritten 8-1/2 by 11-inch pages in length. See Section IX Rule 9.7 (A)(4) for page limits in capital cases.
(2)(4) This Court may then direct the other party to file an answer brief, if necessary. However, the respondent is not required to file an answer brief unless directed by the Court. Failure to file a petition in error, with a brief, within the time provided, shall constitute a procedural bar for this Court to consider the appeal.
(5) Failure to file a petition in error, with a brief, within the time provided, shall constitute a procedural bar for this Court to consider the appeal.
(3)(6) The record on appeal of a denial of post-conviction relief shall be filed by the petitioner. be transmitted by the Clerk of the District Court in accordance with the procedure set forth in Rule 2.3(B), but within the time requirements set forth in Rule 5.3. The record to be compiled by the Clerk of the District Court and transmitted to the Clerk of this Court is limited to the following:
(a) The Application for Post-Conviction Relief presented to the District Court and response, if filed by the State;
(b) The Findings of Fact and Conclusions of Law entered by the District Court, setting out the specific portions of the record and transcripts considered by the District Court in reaching its decision or setting forth whether the decision was based on the pleadings presented, and which includes a certificate of mailing. See Rule 5.3;
(c) The record of the evidentiary hearing conducted, if held; and,
(d) Supporting evidence presented to the District Court; and,
(e) Copies of those portions of the record and transcripts considered by the District Court in adjudicating the issues presented in the application for post-conviction relief as set forth in the findings of fact and conclusions of law entered by the District Court.
PROVIDED HOWEVER, in capital cases the clerk of the District Court shall file the records as required by this Court in accordance with Section 1089 of Title 22 and Section IX, if this Court directs an evidentiary hearing to be held.
(4)(7) Rule 3.11 applies to any request to supplement the record in an appeal of a denial of post-conviction relief in non-capital cases, to include allegations of ineffective assistance of appellate counsel.
(5)(8) The party filing the petition in error shall be known as the petitioner. The party against whom the appeal is taken shall be known as the respondent.
(9) The Notice of Post-Conviction Appeal Form required by Rule 5.2(C)(1) shall be in substantial compliance with the following language:
The Petitioner gives notice of intent to appeal the order granting/denying application for post-conviction relief entered in the District Court of __________ County, on the ______ day of ________, 19__, arising from District Court Case No. ________. The Petitioner requests the preparation of the record on appeal as required by Rule 5.2(C)(6).
(10) Form 13.4, Section XIII, shall not be utilized in appeals from a granting/denial of post-conviction relief and the Clerk of the District Court shall not be required to accept for filing or act upon any pleading which does not comply with Rule 5.2 (C)(6) and (9).
RULE 5.3 IS AMENDED AS FOLLOWS:
Rule 5.3. Duties of Court Clerks and Court Reporters
A. The court clerk shall within five (5) days after the imposition of the order denying post conviction relief on the same day that the order granting or denying post-conviction relief is filed in the District Court, mail to petitioner or counsel of record for the post-conviction proceedings, a certified copy of the order of the District Court setting out findings of fact and conclusions of law granting or denying the application. The Court Clerk shall include a certificate of mailing with the order, which shall also be made a part of the record of the case.
B. 1. Upon receipt of the notice of post-conviction appeal, the Clerk of the District Court shall compile two certified copies of the record on appeal as defined by Rule 5.2(C)(6), and ensure the Notice of Completion of record is filed with this Court within thirty (30) days of the filing of the order granting or denying post-conviction relief.
2. When an evidentiary hearing is held in a non-capital case pursuant to Section 1084 of Title 22 and a notice of post-conviction appeal designation of record is filed with the court clerk and served on the court reporter within ten (10) days of the filing of the order granting or denying post-conviction relief, the denial of post-conviction relief, the court clerk and court reporter shall ensure the record and transcript of the proceedings on the application are completed and notice of completion of record is filed with this Court within thirty (30) days of the date filing of the order. Except for the specific time requirements of this Rule, the provisions of Rule 2.3(b) apply.
Rule 5.4. Duties of the Judge of the District Court
A. The judge assigned to adjudicate the application for post-conviction relief shall prepare a detailed order setting out specific findings of fact and conclusions of law on each proposition for relief presented in the application. The order shall also specify the pleadings, documents, exhibits, specific portions of the original record and transcripts, considered in adjudicating the application, which shall then become a part of the record on appeal as defined by Rule 5.2(C)(3).
B. Due to the statutory time constraints set out in Section 1087 of Title 22, the judge shall monitor and ensure timely notice is provided to the parties by the clerk of the District Court, and if a notice of post-conviction appeal is filed, a timely completion of the record on appeal by the clerk of the District Court together with the court reporter(s), as required.
Rule 5. 45 Final Order; Exhaustion of State Remedies
Once this Court has rendered its decision on a post-conviction appeal, that decision shall constitute a final order and the appellant's state remedies will be deemed exhausted on all issues raised in the petition in error, brief and any prior appeals. A petition for rehearing is not allowed and these issues may not be raised in any subsequent proceeding in a court of this State. The Clerk of this Court shall return to the movant any petitions for rehearing tendered for filing. See Section 1086 of Title 22.
Rule 5.56 Form for Application for Post-Conviction Relief
Any convicted person who seeks post-conviction relief under this Act may apply to the trial court on the form provided in Section XIII, Form 13.11. See Section IX for capital cases.
Rule 7.2 IS AMENDED AS FOLLOWS:
Any party appealing an order or decree enumerated in Rule 7.1 SHALL file with the clerk of the trial court a notice of intent to appeal and a designation of record as set forth in Form 13.4 within ten (10) days from the date of the trial court order. See Rule 2.5. The filing of the Notice of Intent to Appeal and Designation of Record in the District Court is jurisdictional and failure to timely file constitutes waiver of the right to appeal. A certified copy of the Notice of Intent to Appeal and Designation of Record shall also be filed by trial counsel with the Clerk of this Court within ten (10) days from the date the Notice is filed in the trial court. When the issue being appealed is a question of certification, this Court shall issue a scheduling order in accordance with the time requirements set out in Rule 7.3 setting the date for oral argument and due dates for the record on appeal together with the application and response due date. This scheduling order will be strictly enforced to ensure timely resolution of all issues arising from appeals from juvenile proceedings.
RULE 7.4 IS AMENDED AS FOLLOWS:
After notice of intent to appeal and designation of record are filed, the court clerk of the District Court shall prepare three (3) certified copies of all pleadings and instruments filed in the juvenile proceedings for transmittal within forty (40) days from the date of the order in the same manner provided for the preparation of a regular appeal and as set forth in Rules 2.2, 2.3, and 2.4, unless the appeal is relating to an issue of certification or reverse certification in which instance the scheduling order shall control. PROVIDED HOWEVER, the original transcript and one (1) certified copy of the record designated shall be filed with the Clerk of this Court; one (1) certified copy of the record and transcript shall be provided to the district attorney; and, one (1) certified copy of the record and transcript 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.
RULE 9.3 IS AMENDED AS FOLLOWS:
D. Supplemental Brief. Either party may file a supplemental brief, upon written application and approval by this Court. This brief shall only supplement authorities cited in the previous briefs and shall not exceed ten (10) pages. The order allowing a supplemental brief shall set out the due date and page limitations for any response brief. In the event there is a substantial change in the law, since the time of the filing of the brief in chief, this Court shall be notified of the change within thirty (30) days after the change of law is published, and for good cause shown, may increase the number of pages, but in no case to exceed twenty (20) pages.
RULE 9.7 IS AMENDED AS FOLLOWS:
A. Application.
(1) Post-conviction applications shall be in accordance with Form 13.11a, Section V of these Rules, and the provisions of the Post-Conviction Procedure Act, Sections 1080-1089 of Title 22. See Section 1089(E) of Title 22. See also Duvall v. State, 869 P.2d 332, 333-34 (Okl.Cr.1994), 871 P.2d 1386, 1387 (Okl.Cr.1994); Van Woundenburg v. State, 818 P.2d 913, 915 (Okl.Cr.1991); Hale v. State, 807 P.2d 264, 266 (Okl.Cr.1991).
(2) In all cases, the application for post-conviction relief shall be filed with this Court within ninety (90) days from the date the appellee's direct appeal brief is filed with this Court in accordance with Section 701.13 of Title 21; or within ninety (90) days from the date a reply brief is filed with this Court in accordance with Rule 9.3(C). PROVIDED HOWEVER, if a direct appeal brief is filed before November 1, 1995, the application for post-conviction relief must be filed within one hundred-eighty (180) days from November 1, 1995. This Court may, upon application and order, establish briefing schedules for cases where the direct appeal brief was filed before November 1, 1995. Rule 3.4(D) applies to any application for an extension of time.
(3) The verified application shall be in substantial compliance with Form 13.11a and contain:
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 Rule1.13(F), and any affidavits and evidentiary material filed along with the original application. Affidavits and evidentiary material which are timely filed in support of a proposition of error will be reviewed to determine if a threshold showing is met to require a review on the merits. 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.
RULE 10.1 IS AMENDED AS FOLLOWS:
B. A notice of intent to seek relief and designation of record shall be filed in the trial court within ten (10) days from the date the relief is denied by the trial court. 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.
C. It shall be the responsibility of the petitioner to ensure the record is filed with the Clerk of this Court. In order to seek relief, the petitioner shall file within thirty (30) days from the date the trial court denied relief:
RULE 10.5 IS AMENDED AS FOLLOWS:
(3) A certified copy of the District Court order shall be attached to the petition.
FORM 13.2 IS AMENDED AS FOLLOWS:
Form 13.2 Affidavit in Forma Pauperis
The Affidavit in Forma Pauperis must be in the following form:
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STATE OF OKLAHOMA |
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____________________, being first sworn, depose and state that I am a poor person without funds or property or relatives willing to assist me in paying for filing the within instrument. I understand any false statement of a material fact may serve as a basis for prosecution for perjury.
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_________________________________________ |
Subscribed and sworn to before me this ____ day of __________, 19____.
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_________________________________________ |
My Commission expires: __________
STATEMENT OF PRISON ACCOUNT IF INCARCERATED
The above inmate has on deposit in his/her Inmate Trust Fund Account personal funds in the amount of $________ as of this date, ____________, 19____, and the attached statement sets out the deposits and withdrawals for the last six months.
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By ______________________________________ |
FORM 13.4 IS AMENDED AS FOLLOWS:
Form 13.4 Notice of Intent to Appeal
IN THE DISTRICT COURT OF _________ COUNTY
STATE OF OKLAHOMA
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THE STATE OF OKLAHOMA, |
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APPEAL CASE NO. __________ |
NOTICE OF INTENT TO APPEAL;
ORDER DETERMINING INDIGENCY, APPELLATE COUNSEL,
PREPARATION OF APPEAL RECORD, AND GRANTING TRIAL COUNSEL'S
MOTION TO WITHDRAW; COURT REPORTER'S ACKNOWLEDGEMENT; AND
NOTIFICATION OF APPROPRIATE APPELLATE COUNSEL, IF APPOINTED
I. NOTICE OF INTENT TO APPEAL
The Defendant was sentenced on the __________ day of , 19__________, for:
Crime(s)Statute(s)Sentence
______________________________________________________________________________
______________________________________________________________________________
The sentence(s) was/were ordered to run () concurrently () consecutively as follows: ______________________________________________________________________ The Defendant intends to appeal the above conviction(s) to the Oklahoma Court of Criminal Appeals pursuant to __________ (cite specific statute). This Notice of Intent to Appeal and the Designation of Record, attached as Exhibit "A", pursuant to Rule 2.5(A) of the Rules of the Court of Criminal Appeals, Ch.18, App., of Title 22, was filed with the clerk of the trial court within ten (10) days of the date of the pronouncement of the Judgment and Sentence in this case and constitutes a valid initiation of a direct appeal in accordance with the Court of Criminal Appeals Rule 2.1(B). The Defendant further requests that the original record and transcripts be prepared in accordance with the completed Designation of Record, attached as Exhibit A. To assist in the expediting of the appeal, an advisory list of propositions of error, if any, deemed viable by trial counsel, signed by trial counsel (if trial counsel will not be attorney on appeal), is attached as Exhibit "B".
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A true and correct certified copy of the Notice of Intent to Appeal and the Designation of Record with acknowledged receipt by the court reporter(s) were mailed this __________ day of __________, 19__________, to the Clerk of the Oklahoma Court of Criminal Appeals.
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II. APPLICATION FOR DETERMINATION OF INDIGENCY
In accordance with Rule 1.14 of the Rules of the Court of Criminal Appeals, 22 O.S., Ch.18, App., the Defendant submits that he/she is indigent and cannot pay the costs of an appeal. Counsel states:
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Indigency has been previously determined by this Court or its designee, and a pauper's affidavit in accordance with Rule 1.14(A) will be provided if this Court elects to review the Defendant's status. | |
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Indigency has not been previously determined by this Court or its designee, and a pauper's affidavit in accordance with Rule 1.14(A) is attached as Exhibit "C". |
It is requested that appropriate counsel be appointed and transcripts be prepared at the expense of the State.
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III. DETERMINATION OF INDIGENCY
Pursuant to Rule 1.14 of the Rules of the Court of Criminal Appeals, Ch.18, App., of Title 22, this Court finds the Defendant ()IS ()IS NOT currently indigent.
THE COURT ORDERS:
A. Preparation of the Appeal Record:
1. A record of this case ()IS ()IS NOT to be prepared at public expense.
2. The court reporter(s) listed below ()SHALL () SHALL NOT be reimbursed at public expense out of the Court Fund of __________ County for preparation of this record
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3. The return to the trial court clerk all transcripts prepared at state expense during the course of the trial proceedings. These transcripts shall be returned within ten (10) days from the date of sentencing. See Rule 3.2(E).
B. IF INDIGENT:
1. __________, trial counsel for the Defendant, timely completed this Notice of Intent to Appeal and has timely filed a Designation of Record.
2. The court reporter(s) has been served with a copy of the Designation of Record.
3. Appropriate transcripts are ordered at public expense.
4. _____________________, ()CHIEF, CAPITAL DIRECT APPEALS DIVISION OF THE OKLAHOMA INDIGENT DEFENSE SYSTEM (if the death sentence was imposed) ()CHIEF OF THE GENERAL APPEALS DIVISION OF THE OKLAHOMA INDIGENT DEFENSE SYSTEM (if the death sentence was not imposed) ()PUBLIC DEFENDER OF TULSA COUNTY ()PUBLIC DEFENDER OF OKLAHOMA COUNTY ()A PRIVATE ATTORNEY, ADDRESS ________________________, TELEPHONE _________________, is appointed to represent the Defendant on appeal. (The public defender of Tulsa County and Oklahoma County may only be appointed if that office represented the defendant at trial unless a conflict of interest exists as determined.)
5. Any Supplemental Designation of Record by the Oklahoma Indigent Defense System pursuant to Section 1362 of Title 22 must be filed and served upon the appropriate court reporter(s) within thirty (30) days from the date of appointment.
6. __________, trial counsel for the Defendant, is permitted to withdraw as counsel of record.
7. Cases in which death penalty imposed: ___________(name)______, Chief of the Capital Post-Conviction Division of the Oklahoma Indigent Defense System, is appointed to represent the defendant on the filing of an application for post-conviction relief in accordance with the provisions of §§ 1089 and 1356 of Title 22.
C. IF NOT INDIGENT:
1. __________, trial counsel for the Defendant, timely completed this Notice of Intent to Appeal and has timely filed a Designation of Record.
2. The court reporter(s) has been served with a copy of the Designation of Record.
3. __________ has entered his/her appearance and will represent the Defendant on appeal as retained counsel.
4. __________, trial counsel for the Defendant, has filed a Motion to Withdraw as Counsel. The Motion is granted and trial counsel is permitted to withdraw as counsel of record.
IT IS SO ORDERED.
This order signed this __________ day of __________, 19__________.
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NOTE: A NOTICE OF INTENT TO APPEAL AND DESIGNATION OF RECORD MUST BE FILED WITHIN TEN (10) DAYS FROM THE DATE THE SENTENCE IS PRONOUNCED IN OPEN COURT WITH THE CLERK OF THE TRIAL COURT. THIS NOTICE AND DESIGNATION IS JURISDICTIONAL AND FAILURE TO TIMELY FILE CONSTITUTES WAIVER OF THE RIGHT TO APPEAL. A CERTIFIED COPY OF THIS NOTICE AND DESIGNATION SHALL ALSO BE FILED BY TRIAL COUNSEL WITH THE CLERK OF THE COURT OF CRIMINAL APPEALS WITHIN TEN (10) DAYS FROM THE DATE THE NOTICE IS FILED IN THE TRIAL COURT. NO TRIAL ATTORNEY MAY BE GRANTED PERMISSION TO WITHDRAW, IF THE DEFENDANT DESIRES TO APPEAL, UNLESS THESE DOCUMENTS ARE FILED. IF THE DEFENDANT DOES NOT WISH TO APPEAL THIS CONVICTION, TRIAL COUNSEL MUST FILE AN AFFIDAVIT SIGNED BY TRIAL COUNSEL AND ACKNOWLEDGED BY THE TRIAL JUDGE WITH THE CLERK OF THE DISTRICT COURT, BEFORE TRIAL COUNSEL IS ALLOWED TO WITHDRAW, ASSERTING THAT THE DEFENDANT HAS BEEN FULLY ADVISED OF HIS/HER APPEAL RIGHTS AND DOES NOT WISH TO PURSUE AN APPEAL OF THE CONVICTION. See Rule 1.14(D).
IV. COURT REPORTER'S ACKNOWLEDGEMENT
A. The Designation of Record, attached as "Exhibit A", was received on __________, 19__________.
B. IF NOT INDIGENT, satisfactory arrangements ()have ()have not been made for payment of the transcript cost. These financial arrangements were completed on , __________ 19__________ . If payment has not been made/arranged, explain why: __________________________________________
________________________________________________________________________
________________________________________________________________________
C. Number of trial and/or hearing days: ________________________________
D. Estimated number of transcript pages: ______________________________
E. Estimated completion date: _________________________________________
F. I acknowledge receipt of this document and understand I must prepare the record within the time limits prescribed by the Oklahoma Court of Criminal Appeals.
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DATE: |
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V. NOTIFICATION OF COUNSEL, IF APPOINTED
NOTE: No Designation of Record shall be accepted for filing by the trial court clerk unless it contains one of the following:
A. A signed acknowledgement from the court reporter(s) who reported proceedings in a case indicating receipt of the request for transcript(s), the date received, and completed financial arrangements, or an order of the trial court directing the case be prepared at public expense; or,
B. A signed statement by the attorney preparing the designation of record stating that transcripts have not been ordered and a brief explanation why. (Example, I, __________, attorney for the Appellant, hereby state that I have not ordered a transcript because: (1.) A transcript is not necessary for this appeal; (2.) No stenographic reporting was made.)
A true and correct certified copy of this Notice and Order and the Designation of Record were mailed this __________day of __________, 19__________, to ()the Capital Direct Appeals Division, Oklahoma Indigent Defense System, 1660 Cross Center Drive, Norman, Oklahoma 73019; ()the General Appeals Division, Oklahoma Indigent Defense System, P.O. Box 926, Norman, Oklahoma 73070-0926; () Public Defender of Oklahoma County, 611 County Office Building, 320 Robert S. Kerr Avenue, Oklahoma City, Oklahoma 73102; ()Public Defender of Tulsa County, 189 Courthouse, 500 South Denver Avenue, Tulsa, Oklahoma 74103; () __________, privately retained counsel.
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FORM 13.11a IS ADOPTED AS FOLLOWS:
Form 13.11a Application for Post Conviction Relief – Death Penalty
IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA
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APPLICATION FOR POST-CONVICTION RELIEF - DEATH PENALTY
PART A – PROCEDURAL HISTORY
Petitioner, , through undersigned counsel, submits his application for post-conviction relief under Section 1089 of Title 22. This is the _____________ (first, second, etc.) time an application for post-conviction relief has been filed.
The sentence from which relief is sought is: ______________________________
1. (a) Court in which sentence was rendered: ____________________________
(b) Case Number _____________________________________________________
2. Date of sentence: _____________________________________________________
3. Terms of sentence: ___________________________________________________
______________________________________________________________________
4. Name of Presiding Judge: _____________________________________________
5. Is Petitioner currently in custody? Yes( ) No( )
Where? ______________________________________________________________
Does Petitioner have criminal matters pending in other courts?
Yes ( ) No ( )
If so, where? ______________________________________________________
List charges: ______________________________________________________
Does Petitioner have sentences (capital or non-capital) to beserved in other states/jurisdictions? Yes ( ) No ( )
If so, where? ___________________________________________________
List convictions and sentences: ____________________________________
I. CAPITAL OFFENSE INFORMATION
6. Petitioner was convicted of the following crime(s), for which a
sentence of death was imposed:
a. _________________________________________________________________
b. _________________________________________________________________
Aggravating factors alleged (if more than one murder conviction, list
aggravators by conviction):
a. _________________________________________________________________
b. _________________________________________________________________
c. _________________________________________________________________
Aggravating factors found (if more than one murder conviction, list
aggravator by conviction):
a. _________________________________________________________________
b. _________________________________________________________________
c. _________________________________________________________________
Mitigating factors listed in jury instructions:
a. _________________________________________________________________
b. _________________________________________________________________
Was Victim Impact Evidence introduced at trial? Yes ( ) No ( )
7. Check whether the finding of guilty was made:
After plea of guilty ( )After plea of not guilty ( )
8. If found guilty after plea of not guilty, check whether the finding was
made by:
A jury ( )A judge without a jury ( )
9. Was the sentence determined by ( ) a jury, or ( ) the trial judge.
II. NON-CAPITAL OFFENSE INFORMATION
10. Petitioner was convicted of the following offense(s) for which a
sentence of less than death was imposed (include a description of
the sentence imposed for each offense).
a. _________________________________________________________________
b. _________________________________________________________________
11. Check whether the finding of guilty was made:
After plea of guilty ( ) After plea of not guilty ( )
12. If found guilty after plea of not guilty, check whether the finding was
made by:
A jury ( ) A judge without a jury ( )
III. CASE INFORMATION
13. Name and address of lawyer in trial court: ___________________________
______________________________________________________________________
Names and addresses of all co-counsel in the trial court: ______________
______________________________________________________________________
______________________________________________________________________
14. Was lead counsel appointed by the court? Yes ( ) No ( )
15. Was the conviction appealed? Yes( ) No( )
To what court or courts? ____________________________________
Date Brief In Chief filed: _____________________________________________
Date Response filed: _________________________________________________
Date Reply Brief filed: ________________________________________________
Date of Oral Argument (if set) _________________________________________
Date of Petition for Rehearing (if appeal has been decided):
______________________________________________________________________
Has this case been remanded to the District Court for an evidentiary
hearing on direct appeal? Yes ( ) No ( )
If so, what were the grounds for remand? _____________________________
______________________________________________________________________
Is this petition filed subsequent to supplemental briefing after remand?
Yes ( ) No ( )
16. Name and address of lawyer for appeal? _____________________________
______________________________________________________________________
17. Was an opinion written by the appellate court?Yes( )No( )
If "yes," give citations if published: ____________________________________
If not published, give appellate case no.: ______________________________
18. Was further review sought?Yes()No()
If "Yes," state when relief was sought, the court in which relief was
sought, the nature of the claims(s) and the results (include citations
to any reported opinions). ____________________________________________
PART B: GROUNDS FOR RELIEF
19. Has a motion for discovery been filed with this application?
Yes ( ) No ( )
20. Has a Motion for Evidentiary Hearing been filed with this application?
Yes ( ) No ( )
21. Have other motions been filed with this application or prior to the filing of this application?Yes ( ) No ( )
If yes, specify what motions have been filed: ___________________________
______________________________________________________________________
22. List propositions raised (list all sub-propositions).
PROPOSITION I: ________________________________________________
(repeat for subsequent propositions of error)
PART C: FACTS
(STATEMENT OF THE FACTS OF THE CASE, INCLUDING
REFERENCE TO SUPPORTING DOCUMENTATION,
RECORD, AND APPENDICES)
PART D: PROPOSITIONS – ARGUMENTS AND AUTHORITIES