ORDER ADOPTING RULE 1.2(D)(7) AND RULE 8.8
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 adopt and promulgate Rule 1.2(D)(7) and Rule 8.8 of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1998), as set out in the attachment to this order. This revision shall become effective on the date of this order.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 30th day of December 1998.
/s/ Charles S. Chapel
CHARLES S. CHAPEL, Presiding Judge
/s/ Reta M. Strubhar
RETA M. STRUBHAR, Vice Presiding Judge
/s/ Gary L. Lumpkin
GARY L. LUMPKIN, Judge
/s/ James F. Lane
JAMES F. LANE, Judge
/s/ Charles A. Johnson
CHARLES A. JOHNSON, Judge
ATTEST:
/s/James Patterson
Clerk
REVISIONS TO THE RULES OF THE
OKLAHOMA COURT OF CRIMINAL APPEALS
RULE 1.2(D)(7) IS ADOPTED AS FOLLOWS:
(7) Order of Detention for Non-Payment of Fines or Costs. Review of a final order of detention for a defendant's non-payment of fines, costs, or other assessments ordered paid as part of judgment and sentence is governed by Section VIII of these Rules.
RULE 8.8 IS ADOPTED AS FOLLOWS:
Rule 8.8 Direct Appeal from an Order of Detention and Scope of Appeal
A. Final Order of Detention for Non-Payment. The appeal to this Court from a final order of a municipal court of record or a district court directing a defendant to be imprisoned under the provisions of Section 983 of Title 22 or under the foregoing provisions of Section VIII of these Rules shall constitute an appeal from the issues raised in the record below and the judicial findings of fact and conclusions of law made in the trial court, and the trial court's ultimate decision to imprison the defendant. The appeal shall be limited to whether the trial court abused its discretion in entering its final order of detention. The propriety of any fine, cost, or other assessment made within the original judgment and sentence is not a proper subject of an appeal from an order of detention. Such claims must instead be raised in a direct appeal from the judgment and sentence.
B. Stay of Execution of Detention Order Pending Appeal. The trial court may stay the execution of its final order of detention upon the filing by the defendant of a verified motion to stay execution of the order pending appeal. The verified motion must be filed within ten (10) days from the date of the trial court's pronouncement of its order of detention. If the motion is granted, the defendant shall, within five (5) days after the filing of the petition in error in this Court, file a certified copy of the petition in error in the trial court and serve a copy thereof upon the trial judge which entered the order of detention. This shall ensure the trial court is notified that an appeal has in fact been commenced in the Court of Criminal Appeals.
C. Notice of Appeal from Order of Detention and Request for Appeal Record. A defendant desiring to appeal from a final order of detention under these Rules must file a Notice of Appeal from Order of Detention with the Clerk of the District Court within ten (10) days from the date the detention order is pronounced. The Notice of Appeal from Order of Detention shall be in substantial compliance with the following language:
Defendant gives notice of intent to appeal from the trial court's order imprisoning him/her for non-payment of sums due in Case No(s). ____________ in the [name of the district court or municipal court of record in which the detention order was entered] , State of Oklahoma. The final order of detention was pronounced by said court on the _____ day of __________, ______. Defendant requests the clerk of the trial court to prepare an appeal record as required by Section VIII of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App.
Form 13.4, Section XIII of these Rules shall not be utilized in direct appeals from a final order of detention, and the trial court clerk shall not be required to accept for filing or act upon any pleading which does not comply with this rule.
D. Petition in Error, Briefs, and Service.
(1) A petition in error WITH A CERTIFIED COPY OF THE DETENTION ORDER ATTACHED and a supporting brief, must be filed with the Clerk of this Court within thirty (30) days from the date the final detention order is pronounced. The filing of a petition in error is jurisdictional and failure to timely file constitutes waiver of the right to appeal.
(2) The brief shall not exceed thirty (30) typewritten, 8-1/2 by 11-inch pages in length. Briefs and pleadings shall comply with the requirements of Rule 3.5.
(3) The party filing the petition in error shall be known as the appellant. The party against whom the appeal is taken shall be known as the appellee.
(4) This Court may direct the appellee to file an answer brief, if necessary; however, the appellee is not required to file an answer brief unless directed by the Court.
(5) All pleadings and briefs filed in a direct appeal from an order of detention shall be signed by the party responsible for their filing or by the party's attorney of record. Additionally, all such pleadings or briefs shall contain a certificate of service upon the adverse party. The party or their attorney of record shall be responsible for service upon the adverse party, except that service upon the Attorney General will be made by the Clerk of this Court when a party so requests. No pleadings, briefs, or motions will be considered by this Court without proof of service to the adverse party.
E. Record on Appeal from an Order of Detention.
(1) The record on appeal from a final order of detention for non-payment shall be transmitted by the clerk of the trial court in accordance with the procedure set forth in Rule 2.3(B), but within the thirty (30) day time period set forth in Rule 8.8(D)(1).
(2) The record on appeal to be compiled by the trial court clerk and transmitted to the Clerk of this Court is limited to the written order containing findings of fact and conclusions of law and the transcript of the proceedings (both as set out in Rule 8.7) and the judgment and sentence being enforced by means of the detention order.