ORDER ADOPTING REVISION IN AND REPUBLISHING PORTIONS OF
THE RULES OF THE OKLAHOMA 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 republish portions of the Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp.2003, Ch. 18, App. set forth as follows and as set out in the attachment to this order:
1.0(B); 1.2(A)(D); 1.3(B); 1.6(A)(B); 1.9(B); 1.11; 1.13(B)(D)(E); 1.14(A)(C); 1.15(B); 1.16(A); 2.1(B)(C)(E); 2.2(B); 2.5(A)(B); 3.2(C)(2); 3.3(B); 3.4(A)(D)(F); 3.5(A)(C)(G); 3.11(B); 3.13(B); 3.14(B); 3.15; 3.16; 4.3(A); 4.4; 5.2(C); 5.3(A)(B); 6.1(D); 7.1; 7.2; 7.3(A)(B)(C); 7.4; 7.5(B)(C)(D)(E); 9.3(A); 9.4; 9.7(A); 10.1(B)(C)(D); 10.5; 10.6(B)(C); 11.2(A)(C); 11.5(C); 12.2(A); Forms 13.0; 13.1; 13.2; 13.3; 13.4; 13.5; 13.6; 13.8; 13.8(A); 13.9; 13.10; 13.11; 13.13; 13.14; 13.15
¶2 All amendments are reflected as follows: deleted words shown as a line through stricken language and new language highlighted with shaded block. These revisions shall become effective on the date of this order.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 21st day of May, 2003.
/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
ATTEST:
/s/Michael Richie
Clerk
TITLE 22. CRIMINAL PROCEDURE
CHAPTER 18
APPENDIX. RULES OF THE COURT OF CRIMINAL APPEALS
Table of Rules
SECTION I. GENERAL RULES OF THE COURT AND DEFINITIONS
Rule 1.0 Scope of Rules
Rule 1.1 Time of Convening
Rule 1.2 Methods of Appeal or Review
Rule 1.3 Records; -Withdrawal
Rule 1.4 Computation of Time for Appeal
Rule 1.5 Clerk's Office Closed
Rule 1.6 Non-Resident Attorneys; Recognition
Rule 1.7 Communication to be Addressed to Clerk
Rule 1.8 Notice; Sufficiency
Rule 1.9 Required Number of Copies; Pleadings and Motions; Service
Rule 1.10 Filing Fees
Rule 1.11 Application in Forma Pauperis
Rule 1.12 Form of Affidavit in Forma Pauperis
Rule 1.13 Definitions
Rule 1.14 Qualification Rule for Determination of Indigency; Notification; Trial Counsel Responsibility
Rule 1.15 Use of Court Reporter's Transcripts and Recordings by Appellate Indigent Defender
Rule 1.16 Application of Appellant to Proceed With Appeal Pro Se
SECTION II. INITITATING AN APPEAL FROM THE TRIAL COURT
Rule 2.1 Initiating an Appeal (Motion for New Trial, Commencement of Appeal, Filing of Appeal Records, Appeals by the State, Appeals Out of Time)
Rule 2.2 Form and Contents of Record
Rule 2.3 Time for Completion of Record
Rule 2.4 Filing of Record
Rule 2.5 Notice of Intent to Appeal; Designation of Record
SECTION III. PERFECTING AN APPEAL IN THE COURT OF CRIMINAL APPEALS
Rule 3.1 Contents of Petition in Error; Filing
Rule 3.2 Instruments to Be Filed to Complete the Appeal
Rule 3.3 Joinder of Appellants
Rule 3.4 Briefs; Service and Filing
Rule 3.5 Briefs; Contents; Citation of Authorities
Rule 3.6 Failure to Appeal or File Briefs; Duty of Counsel; Scope of Review
Rule 3.7 Contempt of Court, What Constitutes
Rule 3.8 Assignment for Oral Argument; Notice
Rule 3.9 Argument; Opening and Closing; Time
Rule 3.10 Motion; Requisites
Rule 3.11 Supplementation of Record
Rule 3.12 Monitoring Appeal Time; Motion to Dismiss; Notification; Remands For Evidentiary Hearings
Rule 3.13 Opinions; Definition of Votes
Rule 3.14 Rehearing; Requisites of Petition
Rule 3.15 Mandate; Stay; Further Petition for Rehearing
Rule 3.16 Notification of Mandate
SECTION IV. PROCEDURES FOR APPEAL BY CERTIORARI FROM PLEA OF GUILTY OR NOLO CONTENDERE
Rule 4.1 Mandatory Form for Plea of Guilty Summary of Facts
Rule 4.2 Requirements for Commencement of Certiorari Appeal
Rule 4.3 Time for Lodging Appeal; Record of Proceedings; Contents of Petition in Error; Briefs
Rule 4.4 Service of Petition and Brief in Support on District Attorney and Attorney General
Rule 4.5 Bail Pending Decision on Certiorari Appeal
Rule 4.6 Oral Argument, Opinions, Rehearing and Issuance of Mandate
SECTION V. PROCEDURES FOR APPEALING FINAL JUDGMENT UNDER POST-CONVICTION PROCEDURE ACT
Rule 5.1 Purpose of Procedures
Rule 5.2 Appeal from Final Judgment
Rule 5.3 Duties of Court Clerks and Court Reporters
Rule 5.4 Duties of the Judge of the District Court
Rule 5.5 Final Order; Exhaustion of State Remedies
Rule 5.6 Form for Application for Post-Conviction Relief
SECTION VI. APPEAL BY STATE FROM ADVERSE RULING OF MAGISTRATE
Rule 6.1 Commencement of Appeal
SECTION VII. PROCEDURE FOR APPEALING FROM AN ORDER ADJUDICATING A JUVENILE TO BE DELINQUENT; OR FROM A FINAL ORDER CERTIFYING OR DENYING CERTIFICATION OF A JUVENILE TO STAND TRIAL AS AN ADULT; OR FROM A FINAL ORDER GRANTING OR DENYING REVERSE CERTIFICATION
Rule 7.1 Courts from Which Appeals are Lodged
Rule 7.2 Notice of Intent to Appeal
Rule 7.3 Time for Perfecting Appeal; Extension Request; Record of Proceedings
Rule 7.4 Duties of Court Clerk
SECTION I. GENERAL RULES OF THE COURT AND DEFINITIONS
Rule 1.0 Scope of Rules
A. The Rules of the Court of Criminal Appeals shall apply to all appeals and proceedings in this Court. See Section 1051 of Title 22.
B. The Rules set forth in Sections I, II and III shall apply in all types of appeals, unless a specific provision to the contrary appears in the Sections governing specific appeals.
C. All references to statutes are to Oklahoma Statutes unless otherwise noted.
D. Citation to the Rules of this Court shall be in the following format: Rule ___, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (year).
Rule 1.1 Time of Convening
The Court of Criminal Appeals will be open for the transaction of business at any time on the call of the Presiding Judge.
Rule 1.2 Methods of Appeal or Review
A. Regular Appeals.
(1) Felony and Misdemeanor Appeals. Sections II, , and III, and XI of these Rules. Appeals from Municipal Courts of Record, Section 28-128 of Title 11 and Capital Cases, Section 701.13 of Title 21, are included within this class of appeals. PROVIDED HOWEVER, the specific provisions of Sections VII andIX shall control in Juvenile andcapital cases, respectively, over the general provisions of Sections II and III.
(2) Certiorari Appeals. Section IV of these Rules.
(3) State Appeals.
(a) Appeals from Adverse Ruling of Magistrate. See Sections VI and XI of these Rules; Sections 1089.1 through 1089.7 of Title 22.
(b) Other State appeals. See Sections II and III of these Rules; Sections 1053 and 1053.1 of Title 22.
(4) Juvenile and Youthful Offender Appeals. Sections VII and XI of these Rules.
(5) Resentencing Appeals. Sections II and III of these Rules for appeals pursuant to Section 929 of Title 22. Sections II, III and IX for appeals pursuant to Sections 701.10a and 701.13 of Title 21.
(6) Expungement of Records. (22 O.S.Supp.2002 § 19(C), placed jurisdiction for appeals of expungement orders in the Oklahoma Supreme Court).
B. Original Proceedings. Section X of these Rules.
C. Post-conviction Appeals. Section V of these Rules, and in capital cases the requirements of Section IX. See Sections 1087, 1088.1 and 1089 of Title 22.
D. All Other Appeals
(1) Revocation of Parole. Procedures for review of revocation of parole are governed by the Post-Conviction Procedure Act, Sections 1080 to 1089 of Title 22 and Section V of these Rules.
(2) Bail Pending Trial or Appeal. Excessive bail or denial of bail is governed by habeas corpus proceedings pursuant to Section 1079 of Title 22 and Section X of these Rules.
(3) Disqualification of Judges. Review of failure to disqualify by a judge in a criminal case is governed by Section 1403 of Title 20; Ch. 2, App., Rules 15 for District Court of Oklahoma and 15.1 of Title 12, and Section X of these Rules. See also Code of Judicial Conduct, Ch. 1, App. 4, Title 5.
(4) Revocation of Suspended Sentence. Review of an order revoking a suspended sentence is governed by the same procedure as perfection of a regular misdemeanor or felony appeal. See Section 991(b) of Title 22, and Sections II, and III, and XI of these Rules. However, the scope of review is limited to the validity of the revocation order. The appropriate appeal time commences upon imposition of the order revoking suspended sentence. The validity of the predicate conviction can only be appealed through a separate appeal pursuant to the regular felony and misdemeanor procedures of these Rules, Sections II and III, or the certiorari procedure, Section IV of these Rules.
(5) Deferred Judgment and Sentence.
(a) Appeal of Imposition of Order Deferring Judgment and Sentence. See Gonseth v. Oklahoma, 871 P.2d 51 (Okl.Cr.1994).
(i) A defendant may appeal the terms of probation imposed as a part of the Order Deferring Imposition of Judgment and Sentence, separate from or together with the validity of the plea entered at the time the order is entered. Failure to appeal the terms of the Order Deferring Imposition of Judgment and Sentence does not preclude a defendant's right to a certiorari review of the validity of the plea in accordance with this Rule if the order deferring is accelerated at a future date with Judgment and Sentence imposed.
(ii) A defendant who seeks to only appeal the terms imposed by the trial court as a condition for deferral of Judgment and Sentence may appeal under the Rules for regular misdemeanor or felony appeals. See Sections 1051 and 991c of Title 22; and Sections II, and III, and XI of these Rules. The scope of review will be limited to the validity of the conditions of probation set out in the Order Deferring Imposition of Judgment and Sentence.
(iii) A defendant who receives a deferral of Judgment and Sentence after pleading guilty or nolo contendere may challenge the terms of the deferral, seek to withdraw his or her plea, or challenge both such terms and plea, pursuant to the provisions of a regular appeal. Any person wishing to challenge the validity of the plea of guilty must comply with the provisions of Rule 4.1. PROVIDED HOWEVER, failure to challenge the validity of the plea at the same time a defendant appeals the terms of probation imposed by the deferral will constitute a waiver of the right to challenge the plea's validity in any future proceeding.
(iv) The appeal time commences upon the imposition of the order deferring Judgment and Sentence.
(b) Acceleration proceedingProceeding. A defendant who wishes to challenge only errors in the acceleration proceeding shall perfect an appeal in accordance with Sections II, and III, and XI of these Rules. The appeal time commences upon the imposition of Judgment and Sentence after acceleration of sentencing. The scope of review will be limited to the validity of the acceleration order.
(c) Withdrawal of Plea After Acceleration. In addition to appealing the validity of the acceleration order, a defendant who pled guilty or nolo contendere and seeks to withdraw his plea shall appeal by certiorari pursuant to Section IV of these Rules as a part of the appeal of the validity of the acceleration order; PROVIDED HOWEVER, a defendant who appealed after the order deferring sentence pursuant to Subsection (a) of this Section shall not have the right to challenge the validity of the plea after the order deferring has been accelerated and the Judgment and Sentence has been imposed.
(d) Method of appeal. All appeals, except applications which seek only to withdraw a plea of guilty or nolo contendere, arising out of Rule 4.2(D) shall be placed on the Accelerated Docket of this Court. See Section XI of these Rules.
(6) Termination from Drug Court
(a) Same procedure as appeal from Acceleration of Deferred Sentence set out in paragraph 5(b) above. See Hager v. State, 1999 OK CR 35, ¶12, 990 P.2d 894, 898.
(67) Judgment and Sentence in Contempt Cases Within the Jurisdiction of the Court of Criminal Appeals. Review of the Judgment and Sentence in contempt cases within the jurisdiction of this Court is governed by the Misdemeanor Rules of Sections II, and III, and XI of these Rules. See Sections 565-568 of Title 21.
(78) 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 1.3 Records; -Withdrawal
A. Prohibited. The Clerk of this Court shall not permit any of the following to be taken from the Clerk's office without an order from this Court:
(1) The certified copy of the original record;
(2) The original of the transcript of proceedings designated on appeal; or
(3) Any physical evidence filed on appeal.
B. Checking Out Material From The Court
(1) Motion to Check Out Material From Court. A party seeking to check out material from the Court shall file a motion to check out material on a form prescribed by the Court. See Section XIII, Form 13.1. A copy of the prescribed form of motion is available in the Clerk's office. The motion shall specifically state what material movant needs, why it is needed, and acknowledge that movant is solely responsible for the material while it is checked out from the Court and that movant assumes sole responsibility to see that the material is returned to the Court in the same condition in which it was checked out. The purpose of the motion and the procedure is to ensure the integrity of original documents and exhibits.
The Presiding Judge has the discretion to grant or deny the motion to check out material. If the motion is denied, the movant may only view the material at the
Rule 1.6 Non-Resident Attorneys; Recognition
A. Any Practicing practicing attorney of any State, Territory, or the District of Columbia, not licensed to practice in this State, having professional business in this Court, may be recognized in accordance with Rules Creating and Controlling the Oklahoma Bar Association, Sections 17.1 and 17.2 of Title 5; and Ch. 1, App. 1, art. 2, Section 5 of Title 5.
B. Only pro se Appellants/Petitioners and licensed attorneys may sign and file pleadings with the Clerk of this Court. See also Rule 1.16.
Rule 1.9 Required Number of Copies; Pleadings and Motions; Service
The following must be filed in this Court:
A. All pleadings and motions: original and seven (7) copies.
B. No pleadings, briefs or motions will be considered by this Court without proof of service to adverse party. The attorney of record or pro se applicant shall be responsible for service on the adverse party, except that service on the Attorney General will be made by the Clerk of this Court.
Rule 1.11 Application in Forma Pauperis
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.
A pleading shall not be considered filed in this Court until such time as the filing fee is paid or an “Affidavit in Forma Pauperis” is properly filed. This Rule shall not apply to filings of writs of habeas corpus. See 12 O.S.2001 § 1355
Rule 1.13 Definitions
A. Judgment and Sentence. The formal instrument which reflects the Judgment and Sentence of the trial court and the date it was pronounced. See Rule 2.1(B)(4).
B. Original Record. All instruments filed with the court clerk of the trial court during the trial proceedings, in chronological order, preceded by an index, as designated.
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).
D. Notice of Intent to Appeal. A written instrument in the form prescribed by this Court filed by trial counsel serving notice to the trial court of the appealing party's intent to appeal the conviction or order, and filed with the trial court clerk of the trial court, and a certified copy filed with the Clerk of the Court of Criminal Appeals. See Rule 1.14(C).
E. Designation of Record. The instrument filed by trial counsel with the clerk of the trial court and the Clerk of the Court of Criminal Appeals designating the records to be filed on appeal. It shall include that portion of the original record and that portion of the transcript of evidence which the appealing party requests in order to perfect the appeal. It shall list in specific terms the items to be included on appeal. Use of terms such as “All proceedings where a court reporter was present” are not sufficiently specific for the purpose of requiring transcripts to be prepared. Transcripts shall be requested by date and type of hearing to be transcribed.
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. The only method of appeal from a conviction on a plea of guilty or nolo contendere entered in the trial court. See Section IV of these Rules.
H. Post-Conviction Remedies. Remedies available after the regular appeal period has lapsed or mandate issued. Sections 1080 to 1089 of Title 22. See Section V of these Rules. PROVIDED HOWEVER, capital cases are subject to specific remedies set out in Rule 9.7.
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. An appeal from a resentencing proceeding conducted by the trial court. See Section 929 of Title 22 and Section 701.10a of Title 21.
K. Tendered for Filing. Any document, other than the record on appeal and briefs filed as a matter of right pursuant to Rule 3.4, offered by a party, which that party seeks to have admitted into the record before the Court of Criminal Appeals shall be presented to the Clerk of this Court, who shall stamp it tendered for filing, enter it on the docket as tendered, and submit to the Court for a decision whether to grant or deny the tendered document. Documents tendered for filing shall not be a part of the record of the pending appeal unless an order granting the acceptance of the document is entered by the Court.
Rule 1.14 Qualification Rule for Determination of Indigency; Notification; Trial Counsel Responsibility
A. Qualifications.
(1) The qualifications for a defendant to have court-appointed counsel and/or a transcript at State expense in a criminal trial or on direct appeal shall be the same as set forth in Cleek v. State, 748 P.2d 39, 40 (Okl.Cr.1987); Petition of Humphrey, 601 P.2d 103, 108 (Okl.Cr.1979); Bruner v. State, 581 P.2d 1314, 1317 (Okl.Cr.1978). Those guidelines include, but are not limited to: ability of the defendant to make an appeal bond, and his decision to do so; availability and convertibility of any personal and/or real property owned; outstanding debts and liabilities; past and present financial history, earning capacity and living expenses; the accused's credit standing in the community; and the number in the defendant's family and dependents and their history of willingness and ability to assist the defendant with attorney fees and litigation expenses. When a defendant makes a request for court-appointed counsel or a transcript at State expense, a Pauper's Affidavit shall be completed and signed under oath. The initial determination of indigency shall be made by the Chief Judge of the Judicial District or any designee thereof, and shall be made based on the defendant's application and the criteria provided in these Rules.
(2) A status of indigency being ever subject to change, the determination of indigency shall be continually subject to review by the Presiding Judge of the Judicial Administrative District or his/her designee as established by an administrative order. See Section 1355.6(E)(2) 1355 A (B)(1)(2) of Title 22.
(3) Before the court appoints an attorney or grants any relief available under this Section based on the application set forth in Subsection (4) of this Section, the court shall ensure the application is in the form prescribed in Subsection (4) and the person or, if applicable, his parent or a legal guardian, understands the application is signed under oath and under the penalty of perjury and that a false statement may be prosecuted as such. The Court hearing the application may direct a copy of the application be sent to the prosecuting attorney or the office of the Attorney General, whichever is appropriate, for review; and upon request, the court shall hold a hearing on the issue of eligibility for appointment of the attorney or preparation of transcript at State expense. See Section 1355.6(F) 1355 A (C) of Title 22.
(4) Pursuant to Section 55 of Title 20, the completed form shall be filed of record and be in compliance with the form set out in Section XIII, Form 13.3.
B. Payment of Costs of Representation. The court may order any person represented by a trial indigent defender, a county indigent defender, any member of the Oklahoma Indigent Defense System, or a defense attorney who contracts or volunteers to represent indigents pursuant to Sections 1355-1355.14 of Title 22 to pay the costs for representation in full or in installments pursuant to the procedure set forth in Section 1355.14 of Title 22, after a judicial determination that the person is financially able to pay such costs. The trial court shall enter an order for the payment of cost of representation and determine eligibility of right to appointed counsel on appeal at the time of entering the Judgment and Sentence.
C. Notification. In all cases the uniform Notice of Intent to Appeal form adopted by this Subsection shall be utilized. If the court appoints an appellate indigent defender in Tulsa or Oklahoma Counties, or the Oklahoma Indigent Defense System, to represent the defendant on appeal, the clerk of the trial court shall notify the indigent defender of the appointment. PROVIDED HOWEVER, the court shall not order the appointment of an appellate indigent defender or notify the appellate indigent defender until the defendant's trial counsel files the Notice of Intent to Appeal and Designation of Record in a timely manner. In so doing, the court shall use the form set out in Section XIII, Form 13.4. The Executive Director of the Oklahoma Indigent Defense System shall ensure notice is provided to the Judges of the District Court and the clerks of the District Court of the names of the attorneys assigned as chief of the Capital Appeals Division and the General Appeals Division to enable the District Court to comply with the requests for appointment of counsel for indigent defendants on appeal. The initial notice shall be made within thirty (30) days of the effective date of these Rules and at least annually thereafter. PROVIDED HOWEVER, notice shall be given within ten (10) days of any change in personnel in those positions.
D. Trial Counsel Responsibility
(1)The trial attorney in all cases shall be responsible for 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 shall 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.
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 an indigent defendant, an original and two (2) 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. An appellate indigent defender is required to review the statement of appealable issues attached as Exhibit B to the notice of intent to appeal and discuss the viability of issues for appeal with trial counsel prior to filing a supplemental designation of record, if supplementation is required. Any supplemental designation of record shall set forth why the additional record is required and include only those portions of the record necessary to address the propositions to be raised. Any supplemental designation of record shall include a signed acknowledgement of receipt of the additional designation from each court reporter responsible for preparing the record. The acknowledgement may be a part of the designation of record filed or a signed certified mail return receipt card acknowledged by the reporter with an affidavit of mailing executed by the attorney requesting the additional record attached to it.
C. In the event some portion of the trial proceeding was not transcribed and was not included in trial counsel's designation of record and the appellate indigent defender feels that portion should be provided, as an alternative, the court reporter may make available to the appellate indigent defender the electronic recording, or a copy of that recording. The appellate indigent defender may review it to determine what portion of the record should be transcribed.
D. In the event partial transcripts have been prepared during trial, at the time Judgment and Sentence is imposed those transcripts must be filed with the trial court clerk, together with all transcripts of pre-trial motions and preliminary hearings. See Rule 3.2(E).
Rule 1.16 Application of Appellant to Proceed With Appeal Pro Se
A. An Appellant desiring to represent himself or herself in an direct appeal to this Court, or desiring to dismiss appellate counsel and further proceed to represent himself or herself on appeal to in this Court, shall be required to present to the District Court an affidavit and request in the form set forth in Section XIII, Form 13.6. If the Appellant is free on appeal bond or incarcerated in the county where the conviction occurred, the affidavit and request shall be filed with that District Court. If the Appellant is incarcerated outside the county where the conviction occurred, the affidavit and request shall be filed in the District Court in the county where the Appellant is incarcerated. The court clerk shall file the application in the original case, if in the county of original conviction, or assign a new criminal case number to the application if the application is filed in a county where the appellant is then incarcerated. Appellant shall ensure that notice is provided to appellate counsel, who may appear or otherwise respond, but who shall not be required to do so. After the case is assigned to a judge of a District Court, a hearing is conducted, and the judge's order filed, the court clerk shall prepare two (2) certified copies of all pleadings and orders and mail one (1) complete set to the District Court where the conviction occurred and one (1) complete set to this Court for filing in the original and appellate case files. See Section XIII, Form 13.6.
B. When presented with an affidavit and request, the District Court shall make appropriate findings of fact and enter an order similar in form and content to the order form shown in Section XIII, Form 13.7.
SECTION II. INITIATING AN APPEAL FROM THE TRIAL COURT
Rule 2.1 Initiating an Appeal (Motion for New Trial, Commencement of Appeal, Filing of Appeal Records, Appeals by the State, Appeals Out of Time)
A. Motion for New Trial. A motion for new trial based on newly discovered evidence is governed by Sections 952 and 953 of Title 22, and in the Post-Conviction Procedure Act, Sections 1080 through 1089 of Title 22.
(1) In the event a motion for new trial based on newly discovered evidence is filed after the Judgment and Sentence is pronounced by the trial court, but before an appeal has been perfected by the filing of the Petition in Error in this Court, the motion must be filed with the clerk of the District Court, accompanied by affidavits in support, and a copy must be served on the trial judge and the district attorney. The motion shall also request a hearing date be set within twenty (20) days, with postponement only at the trial judge's discretion. If the motion has not been ruled on within the time in which an appeal has been perfected to this Court, the trial court shall have continuing jurisdiction to rule on the motion, but in no event shall the ruling be delayed more than thirty (30) days after the appeal has been perfected. The filing of the motion in the trial court shall not stay proceedings or absolve the defendant from the duty to file the appeal in this Court within the time provided by law.
(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).
(3) If a motion for a new trial on newly discovered evidence is filed 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 contain 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 Procedure Act, Sections 1080 to 1089 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 record as prescribed in Rule 1.14(C) 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 (10) 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. The Clerk of this Court shall then issue a Certificate of Appeal, containing the due date for the filing of the Petition in Error and the Original Record together with the Transcripts of the Trial Proceedings.
(1) A motion for new trial is not required in order to commence an appeal in this Court. See Section 1054.1 of Title 22.
(2) The notice of intent to appeal must include specific authority under which the party seeks to perfect the appeal.
(3) Any supplemental designation of record pursuant to Section 1362 of Title 22 must be filed, with acknowledgement of service on court reporters, within thirty (30) days of date of appointment. See Rule 1.15(B). Otherwise any request to supplement the record shall be pursuant to Rule 3.11.
(4) The Judgment and Sentence shall be in the form prescribed in Section XIII, Form 13.8; appropriate addenda may be added as attachments to address local requirements. The trial courts shall develop and utilize an Order Deferring Imposition of Judgment when judgment is deferred pursuant to Section 991c of Title 22. In addition, the trial court shall develop and utilize an Order of Revocation of Suspended Sentence pursuant to Section 991b of Title 22. PROVIDED HOWEVER, when a sentence of death is imposed, the District Court shall utilize a Judgment and Sentence which incorporates the death warrant; and in fish and game violations and motor vehicle traffic cases prosecuted by Uniform Citation Complaint, the Judgment and Sentence may be set forth on the abstract of the court's action contained on the Uniform Citation Complaint Form or other form approved by the District Court.
C. Filing of Appeal Records. The records for appeal in all misdemeanor and felony cases, including the petition in error, must be filed with the Clerk of this Court within ninety (90) days from the date the Judgment and Sentence is imposed. See Section 1054 of Title 22. See Rule 7.3(C) for time requirements in juvenile cases and Rule 9.2(B) for time requirements in capital cases. Excluding the Notice of Intent to Appeal and the Designation of Record, which must be filed by trial counsel within ten (10) days after Judgment and Sentence is imposed, appellate counsel is responsible to ensure all records necessary to complete the appeal are filed. Where the transcript cannot be completed and filed within the time provided for filing appeals, the appellant must file his petition in error within ninety (90) days from the date the Judgment and Sentence is imposed and then proceed in accordance with Rule 3.2(C)(2).
D. Appeals by the State. The State must give notice in open court of the intent to appeal, and must state the specific authority under which the appeal will be taken in the written notice which must be filed in the trial court within ten (10) days of the District Court's order sought to be appealed. See Rule 1.2(A)(3). The prosecutor shall also file with the trial court clerk a written notice of intent to appeal and a designation of record as prescribed in Rule 1.14(C) within ten (10) days from the date the Judgment and Sentence is imposed or the order being appealed is entered. 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 the prosecutor with the Clerk of this Court within ten (10) days from the date the Notice is filed in the Trial Court. See Rule 2.5 and Form 13.4.
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 shall file a petition for an appeal out of time in this Court within thirty (30) days of the District Court’s ruling 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 Notice of Completion or Non-Completion.
(3) When an appeal out of time is granted in an appeal 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).
(4) (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 with the clerk of 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., if an evidentiary hearing had not already been held.
Rule 2.2 Form and Contents of Record
A. Duties of Clerk to Assemble Record. After a designation of the record is made, the trial court clerk shall promptly assemble, in chronological sequence, all of the instruments on file, together with transcripts as required by subpart B of this Rule, which have been designated for inclusion in the record on appeal. The instruments, numbered consecutively, indexed and bound in volumes which shall not exceed two hundred (200) pages each, shall be certified under the seal of the clerk of the trial court. All designations of record and a certified copy of all the appearance docket sheets, as well as the Judgment and Sentence or final order, shall be included. In accordance with Rule 3.2, three (3) certified copies shall be prepared for transmission to this Court and appellant's attorney. The Court recognizes the provisions of Section 1054 of Title 22, but directs the clerk of the trial court to retain the original record in the trial court. See Rule 4.3 for duties in certiorari appeals.
B. Duties of Court Reporter to Assemble Exhibits.
(1) The court reporter shall ensure trial exhibits are indexed and incorporated into the transcript by physical attachment. In the event the exhibit cannot be physically attached, the court reporter shall attach a clear and viewable photograph or photocopy accurately depicting the exhibit to both the original transcript (or separate volume if necessary) and copies as required below. All copies of exhibits, including photographs, provided pursuant to this Rule shall be in color unless the original exhibit was in black and white. Black and white photocopies of color exhibits are not acceptable. If the exhibit is an audio or video tape or other electronically reproduced medium, the reporter shall be responsible for ensuring that the original and two (2) copies of the item are filed with the transcripts. In each instance, as a condition to the admissibility of the exhibit for consideration on appeal, the trial court shall ensure the party introducing the exhibit shall be responsible for both its reproduction in the same quality as the original, including delivery to the court reporter, and the cost of reproduction. If a party fails to comply with a reporter’s request to provide copies of exhibits in accordance with this Rule, the court reporter, after completion of the transcripts, shall file a notice of non-completion with the clerk of the District Court and the Clerk of this Court setting out with specificity the items that have not been provided, when the request was made and the party who has failed to comply with this Rule.
(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) Upon the filing of the transcript, the court reporter is required to notify in writing the defendant's appellate attorney, the district attorney, the attorney general, the trial court clerk and the Clerk of this Court that the transcripts have been filed with the trial court clerk. This notice shall be specific, itemizing and describing with particularity all transcripts (by volume number or date of hearing) and exhibits (by number/letter and description) filed with the court clerk. If more than one court reporter was involved in the proceedings at issue, each court reporter shall be responsible for filing a separate specific, itemized list. The clerk of the trial court shall file the notice with the record.
(4) No exhibits other than documentary, photographic or electronically recorded evidence, as required by subpart (B)(1) of this Rule, shall be incorporated into the record on appeal or transmitted to the Clerk of the Court of Criminal Appeals; PROVIDED HOWEVER, this Court may direct supplementation of the record for any exhibit necessary for the determination of the appeal. Under no circumstances will controlled or dangerous substances, weapons, or ammunition, or body fluids or tissues be included in the record.
C. Transcript Not Available. If no transcript has been previously prepared and no tape recording is available for any portion of the trial proceedings, the trial attorneys may stipulate or submit affidavits as to what transpired during the proceeding not transcribed or recorded. The trial judge shall enter an order adjudicating any matters upon which the attorneys cannot agree regarding what transpired during the unrecorded or untranscribed proceedings.
D. Transcript Available. The transcript prepared by the court reporter shall constitute the record of the proceedings from which it was transcribed. When such transcript is made, tape recordings made by the court reporter as a supplementary backup to the stenographic record to the completed transcript of proceedings shall not constitute a part of the official record unless such proceedings were recorded in accordance with Section 1223.1 of Title 22. See Sections 106.4(a), 106.4a, and 106.5 of Title 20. This Rule does not preclude findings of extreme necessity by the trial court that such recordings, if they exist, are necessary to supplement inadequate transcripts.
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 2.5 Notice of Intent to Appeal; Designation of Record
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 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.
(1) Original Record. The designation of the original record shall specify those records filed in the trial court which are to be included in the original record for appeal. The Judgment and Sentence MUST BE INCLUDED in the designation of record.
(2) Transcript of Evidence. The designation of record for the transcript of evidence must specify that part of the record transcribed by the court reporter to be included in the record on appeal. If the defendant requests the entire proceedings to be included, the designation of record must so state. The certification of the transcript shall be made by the court reporter and be in substantially the same form as prescribed in Form 13.9. The voir dire shall be included in all capital cases as required by Rule 9.2.
(3) Court Reporter's Costs. At the time the designation of record is served on the court reporter, arrangements for preparing the transcripts of evidence shall be reached between the attorney and the court reporter, unless the court directs the appeal to be at public expense, and certified in accordance with the form prescribed in Rule 1.14(C). See Form 13.4. In all cases, arrangements for the payment of costs for preparation of the transcripts shall be made to ensure transcripts are prepared within the time allotted by these rules.
B. Counter-Designation of Record. If the appealing party's designation of record does not specify preparation of the entire record, the opposing party or trial judge may file a counter-designation of record with the clerk of the trial court within twenty (20) thirty (30) days after being served with a copy of the appealing party's brief in chief. See Rule 3.11(B)(2).; 20 O.S.2001 § 106.4(B).
C. Cost for Counter-Designation. Unless otherwise ordered by the trial court, the cost for the counter-designation of record shall be borne by the appealing party. Portions of the counter-designated record, shown at a hearing before the trial court to be unnecessary, may be ordered at the opposing party's expense when inclusion is demanded.
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) In the event the petition in error is timely filed but the designated transcripts have not been completed and cannot be filed, the court reporter who transcribed the trial, or other proceeding, must submit an affidavit to this Court showing why the transcripts have not been completed and requesting an extension of time not exceeding thirty (30) days. A copy of the affidavit and request for extension of time shall be mailed to the trial judge, trial court clerk and appellate counsel. The affidavit must be submitted by the court reporter to this Court and must show good cause why the additional time is needed. An affidavit from an appellant's attorney, the attorney's assistant or any person other than the court reporter shall not suffice. For purposes of this Section, "good cause shown" shall not include press of business. If the reason the transcripts have not been timely filed is due to the fault of the appellant, the court reporter shall set out with specificity the facts constituting appellant's fault. The Presiding Judge may grant requests for extensions not exceeding a total time of sixty (60) days. The clerk of this Court shall send a copy of the order granting or denying the extension request to the trial judge, trial court clerk and appellate counsel in addition to the court reporter. After filing an affidavit and request for extension out of time pursuant to this subsection, any request for an extension beyond sixty (60) days from the original due date will require the court reporter to contact the Presiding Judge or Vice-Presiding Judge who shall, subject to the approval of the Court at conference, make a determination of whether additional time can be granted or whether the court reporter must appear in person before the Presiding Judge or the Vice-Presiding Judge, or the Court en banc to show cause as to why any additional time is required. See also Rule 9.2(C) and Section 701.13 of Title 21. If the Court determines the failure to timely file the transcripts is due to the fault of appellant, the appeal may be dismissed after notice and opportunity to be heard.
(3) The appellate counsel is required to constantly monitor the preparation of the records for appeal and is ultimately responsible for the timely filing of the appeal records. Requests for assistance in the timely preparation of the records may be submitted to this Court for appropriate action, to include applications for writ of mandamus.
D. Transmission of Records. The Clerk of this Court shall transmit copies of records and transcripts to appellee as necessary.
E. Trial Court's Duty to Preserve Records. When during the course of trial proceedings a transcript is prepared at State expense, it shall be the duty of the trial court to enter an appropriate order defining access to those transcripts during the trial proceedings; and after completion of the trial proceedings to order the timely return of all transcripts to the trial court clerk so they may be filed on appeal. At the time the trial court approves transcripts of preliminary hearings or pretrial proceedings to be prepared at State expense, the order entered shall require the court reporter to file the transcripts with the trial court clerk and provide access to the parties for trial preparation with the requirement all transcripts shall be returned to the clerk of the trial court within ten (10) days of the sentencing. The order shall also direct that a party granted access to the transcripts for purpose of appeal shall return all transcripts to the clerk of the trial court within twenty (20) days from the date the mandate of the decision on appeal is entered by this Court. This order shall ensure notice of requirements is directed to both the State and the defendant. See Section 106.4a of Title 20; Tiger v. State, 859 P.2d 1117 (Okl.Cr.1993).
Rule 3.3 Joinder of Appellants
A. Joint Appeal. When two or more defendants stand convicted as co-defendants at a single trial, they may join in one appeal or appeal separately.
B. Single Record. When two or more co-defendants file separate appeals, represented by different attorneys, one record may be filed, but separate petitions in error and briefs must be filed for each appellant. In addition to the requirements set forth in Rule 3.1, the petition in error must cross-reference to the appellant in whose name the appeals records were filed. However, if only one defendant timely appeals, that defendant shall only be entitled to that portion of the trial court record and transcripts that apply to him/her.
C. Cross-Reference of Appeal Records. When several co-defendants file separate appeals, but only one set of appeal records is filed, it shall be the responsibility of each attorney perfecting an appeal to ensure that the appeal records are timely filed and properly cross-referenced at the time the petition in error is filed with the Clerk of this Court. The briefs must also refer to the case number in which the appeal records are filed.
D. Consolidation. This Court without notice and on its own motion may consolidate the appeals of two or more co-defendants unless a co-defendant specifically states in the petition in error that he/she opposes such consolidation and shows good cause why the appeal should not be consolidated with the appeals of other co-defendant(s).
Rule 3.4 Briefs; Service and Filing
A. Number of Copies. An original and seven (7) copies of each brief for each party shall be filed with the Clerk of this Court, and a copy must be served on the adverse party. The counsel of record shall be responsible for service on the adverse party, except that service on the Attorney General will be made by the Clerk of this Court. See Rule 1.9(B).
B. Filing time. Unless otherwise ordered by this Court, the appellant's brief must be filed within sixty (60) days from the date the notice to transmit record on appeal is filed by the Clerk of this Court. See Section IX for capital cases.
C. Answer Brief. Unless otherwise ordered by this Court, the appellee shall file an answer brief within sixty (60) days from the date the appellant's brief is filed with the Clerk of this Court in both felony and misdemeanor appeals. See Section IX for capital cases.
D. Extensions of Time to File Brief.
(1) In all appeals an attorney of record or party applying for an extension of time to brief must file an application, supported by affidavit, with the Clerk of this Court. See Rule 1.9. An extension is not a matter of right, and will only be approved if the facts in the application and affidavit merit the extension. Extensions will not be granted for more than thirty (30) days upon each application.
(2) (a) Because extensions of time are not favored, a motion for extension of time must be filed by appellate counsel and shall include an affidavit containing a specific statement of facts showing the reasons why it is impossible to file the brief within the time prescribed. The affidavit shall also recite whether a prior extension of time has been granted to the applicant, and if so, the time granted and date of each. The Presiding Judge or Vice-Presiding Judge may grant requests for extensions not exceeding a total of sixty (60) days. Any request for If an attorney requests an extension beyond sixty (60) days from the original due date, will require the Presiding Judge or the Vice-Presiding Judge may, subject to the approval of the Court at conference, grant additional time or may order the attorney to appear in person before the Court en banc to show cause as to why additional time is required.
(b) If an appellant is proceeding pro se and an extension of time beyond sixty (60) days is required, appellant must file an affidavit as set forth in Rule 3.4(D)(2)(a). A request for an extension beyond sixty (60) days for appellants proceeding pro se will be reviewed by this Court en banc and if granted, will be a final extension and will not be for more than an additional ninety (90) days.
(3) Applications must be accompanied by stamped, addressed envelopes for all attorneys of record and the appellant. The Clerk shall mail a copy of the order granting or denying an extension to the appellant and each attorney of record.
E. Briefs to Be Filed by Attorney of Record. When the records of this Court reflect that an appellant has either a retained attorney or court-appointed attorney, only briefs submitted by the attorney of record will be accepted for filing by the Clerk of this Court. Any "pro se" legal arguments to be contained in appellant's brief shall be submitted by the appellant to the attorney of record for submission to this Court. The attorney of record shall review any requested "pro se" legal arguments to ensure only viable, non-frivolous arguments are incorporated into the brief prepared and submitted by the attorney. Any motion to supplement or amend legal arguments must contain a certification by the attorney of record that the attorney has examined the pro se arguments, and that the arguments and authority submitted comply with the Rules of this Court. The attorney shall also list the reasons for the recommendation that the supplemental arguments be accepted. Any request to file a "pro se" brief must be filed within sixty (60) days of the appellant's initial brief. Such "pro se" supplemental briefs shall be limited to ten (10) pages. See Rule 3.4(F)(3). This Court will summarily deny "pro se" briefs which are merely forwarded by the appellant's attorney without compliance with the requirements of this Rule and/ or which do not comply with the time requirements set forth herein.
F. Reply Brief, Supplemental Brief, Amicus Curiae Brief
(1) A reply brief may be filed in any direct appeal. The reply brief must be filed within twenty (20) days of the answer brief. The reply brief shall only respond to the appellee's brief in chief. Any propositions of error advanced for the first time in any reply brief shall be deemed waived and forfeited for consideration.
(2) A supplemental brief, if necessary to present new authority on issues previously raised, may be filed if granted leave of Court. Any party granted leave to file a supplemental brief shall file the brief within fifteen (15) days from the date the request to file is approved. A brief or document tendered for filing does not constitute acceptance for consideration as a proper part of the pending appeal unless the Court enters an order granting the filing of record. Except for issues of first impression, propositions of error advanced for the first time in any supplemental brief will be deemed forfeited for consideration. See Brown v. State, 871 P.2d 56, 68 (Okl.Cr. 1994); Castro v. State, 745 P.2d 394, 404 (Okl.Cr.1987). New propositions of error may be advanced in a supplemental brief only on an issue of first impression decided after an appellant's brief-in-chief is filed but before the appellant's case is decided by this Court; however, the application to file supplemental brief, with brief attached, containing the new proposition must be filed within thirty (30) days after the issue of first impression is published. Supplemental briefs containing new propositions filed after this thirty-day period will be deemed forfeited for consideration. If the application is granted, the Court may direct a response from the appellee, if required. For purposes of this Rule, an "issue of first impression" is defined as one where the result was not dictated by precedent existing at the time an appellant was convicted at trial, one which was susceptible to debate among reasonable minds, and is shown to be retroactively applicable to appellant's trial. Also for purposes of this Rule, "published" here refers to the date of the Oklahoma Bar Journal in which the opinion first appears; or the official slip opinions released by federal courts.
(3) A reply brief or supplemental brief shall be limited to ten (10) pages. A request to exceed the page limitation must be filed in writing setting forth a specific basis for need. See also Rule 9.3 in capital cases.
(4) An amicus curiae brief shall not be filed until leave of Court is granted. Any person or organization seeking to file an amicus curiae brief shall first submit a motion to the Court requesting authorization to file a brief which shall set out with specificity the basis in law or fact why an amicus curiae brief would be of assistance to the Court in deciding the issue presented. The Court shall rule on the motion and set a time for filing the brief if the motion is granted.
Rule 3.5 Briefs; Contents; Citation of Authorities
A. Brief of the Appellant. The brief of the appellant shall be in substantial compliance with the form and organization as follows:
(1) A cover page containing the style of the case, the case number(s) in this Court and the trial court, together with the name(s), address(es) and telephone number(s) of the attorney(s) submitting the brief and the attorney(s) OBA number(s);
(2) A table of contents, with page references, and an alphabetical table of cases, statutes and other authorities cited, with references to the pages in the brief where they are cited;
(3) A statement of the case, indicating briefly its nature, the course of proceedings, and its disposition in the trial court;
(4) A statement of the facts relevant to the issues presented for review, with appropriate references to the record, referring to the original record as "(O.R. ___)" and to pages in the transcript of evidence as "(Tr. ___)";
(5) An argument, containing the contentions of the appellant, which sets forth all assignments of error, supported by citations to the authorities, statutes and parts of the record. Failure to list an issue pursuant to these requirements constitutes waiver of alleged error. (See Armstrong v. State, 811 P.2d 593, 599 (Okl.Cr.1991));
(6) A short conclusion stating the specific relief sought;
(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,
(8) A certificate of service on the adverse party, as provided in Rule 1.9(B).
B. Brief of Appellee. The brief of the appellee shall conform to the requirements of subdivision (A).
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, and Pacific 3rd 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 (Okl.Cr.1953).
(v) Hunter v. State, 264 P.2d 997, 998 (Okl.Cr.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, and Pacific 3rd 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 (1997).
(ii) Robinson v. State, 1997 OK CR 24, 68 OBJ 1379, 1381(1997).
(iii) Robinson v. State, 1997 OK CR 24, ¶ 3, 68 OBJ 1379, 1381 (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.
(3) In all instances, an unpublished opinion is not binding on this Court. However, parties may cite and bring to the Court’s attention the unpublished opinions of this Court provided counsel states that no published case would serve as well the purpose for which counsel cites it, and provided further that counsel shall provide opposing counsel and the Court with a copy of the unpublished opinion.
(4) Citation to opinions of the United States Supreme Court shall include each of the following: U.S., S.Ct., L.Ed. (year).
(5) Citation to Oklahoma Uniform Jury Instructions - Criminal (Second) shall be as follows: Instruction No. ____, OUJI-CR(2d); and citation to revised instructions shall be noted with the addition of (Supp. _____) (Year).
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(6) Failure to present relevant authority in compliance with these requirements will result in the issue being forfeited on appeal. See Stafford v. State, 800 P.2d 738, 741 (Okl.Cr.1990); Walton v. State, 744 P.2d 977, 979 (Okl.Cr.1987); S.R.S. v. State, 728 P.2d 515, 518 (Okl.Cr.1986).
D. Length of Brief. The brief shall not exceed fifty (50) typewritten 8-1/2 x 11-inch pages in length, except as otherwise specified. See Rule 9.3 for page limits on capital cases. Briefs may be either printed or typewritten and must be double spaced. Quotations of fifty (50) words or more in length from any authority cited in a brief must be indented and single spaced. Left and right margins must be one inch. The top margin must be 1-1/4 inch, and the bottom margin must be one inch.
E. Type Size. Briefs and pleadings shall not use more than 12 characters per inch in the body of the document, and 17 characters per inch in footnotes.
F. Paper Size. All pleadings shall be made on 8-1/2 x 11-inch paper.
G. Pagination. All pleadings filed in this Court in excess of two (2) pages shall be paginated.
Rule 3.11 Supplementation of Record
A. After 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.
B. Supplementation of the record upon request of a party will be allowed only in the following instances:
(1) wwhen When it appears from the record that an item admitted during proceedings in the trial court and timely designated to be included in the record has been excluded, supplementation of the record will be allowed on motion of either party; or
(2) wwhen When a party files a motion to either amend the designation of record or counter designate a part of the record to include a transcript of any proceeding conducted by the trial court during the course of the trial court proceedings in this case or any item admitted as evidence by the trial court but not included in the original designation of record, the court may allow the amendment and direct the supplementation of the record with the item designated; or when the following special requirements are met; See also Rule 2.5(B).
(3) The Record on appeal is formulated only by matters which have been admitted during proceedings in the District Court trial court. A request to supplement the record on appeal with matters not presented to and included as a part of the District Court trial court record is only available under the following two circumstances:
(a) Matters timely and properly admitted as a part of a motion for a new trial as set out in Sections 952 and 953 of Title 22 and Rule 2.1 of the Rules of the Court of Criminal Appeals; or
(b) When an allegation of the ineffective assistance of trial counsel is predicated upon an allegation of failure of trial counsel to properly utilize available evidence or adequately investigate to identify evidence which could have been made available during the course of the trial, and a proposition of error alleging ineffective assistance of trial counsel is raised in the brief-in-chief of aappellantAppellant, appellate counsel may submit an application for an evidentiary hearing, together with affidavits setting out those items alleged to constitute ineffective assistance of trial counsel. The proposition of error relating to ineffective assistance of trial counsel can be predicated on either allegations arising from the record or outside the record or a combination thereof. See Dewberry v. State, 1998 OK CR 10, 954 P.2d 774. This Court will utilize the following procedure in adjudicating applications regarding ineffective assistance of trial counsel based on evidence not in the record:
(i) In order to rebut the strong presumptions of regularity of trial proceedings and competency of trial counsel, the application and affidavits must contain sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence.
(ii) If this Court determines such a strong possibility exists, it shall remand the matter to the trial court for an evidentiary hearing, utilizing the adversarial process, and direct the trial court to make findings of fact and conclusions of law solely on the issues and evidence raised in the application. The order directing an evidentiary hearing shall set out the scope of the hearing. The trial court shall have discretion as to the number of witnesses who can be called in support or opposition to the issues and evidence identified by this Court as being within the scope of the evidentiary hearing. The order shall also set out the time requirementsfor the completion of the record, to include the court’s findings and supplemental briefing, if different from the time requests set out in this Rule.
(iii) Upon remand, the trial court shall conduct an evidentiary hearing within thirty (30) days from the date of remand. The court reporter shall complete and file an original and two (2) certified copies of the transcripts with exhibits attached (original and three (3) certified copies in capital cases) within twenty (20) days of the completion of the evidentiary hearing.In that hearing, tcourt Court within thirty (30) twenty (20) days of the evidentiary hearing filing of the transcripts in the District Court. The findings of fact and conclusions of law shall determine the availability of the evidence or witness,, the effect of the evidence or witness on the trial court proceedings; ;whether the failure to use a witness or item of evidence was trial strategy,, and if the evidence or witness was cumulative or would have impacted the verdict rendered.
(iv) The findings of fact and conclusions of law of the trial court shall be given strong deference by this Court in determining the proposition raised by appellate counsel; however, this Court shall determine the ultimate issue whether trial counsel was ineffective.
(v) The clerk of the District Court shall transmit the record to the Clerk of this Court, and Appellant’s attorney, within five (5) days of filing of the trial court’s written findings of fact and conclusions of law. The Clerk of this Court shall upon receipt, then deliver copies of the record and transcripts to the Attorney General or attorney representing the State.
(v) (vi) A supplemental brief may be filed by either party within fifteen (15) twenty (20)days after the trial court's written findings and conclusions are filed in this Court. A supplemental brief shall be limited to ten (10) pages and shall address only issues concerning the record supplementation. A request to exceed the page limitation must be filed in writing setting forth a specific basis for need.
(4) A request to supplement under this rule will not be granted after the filing of the requesting party's brief-in-chief.
C. A motion to supplement, tendered for filing, does not constitute acceptance for consideration as a proper part of the record of the pending appeal. Approval to supplement shall only be granted upon a written order approved by a majority of the members of the Court.
D. Any request to supplement the record must be filed by counsel in accordance with Rule 3.4(E).
E. A copy of the Motion to Supplement shall be served on the opposing party, or counsel, who shall have fifteen (15) days to file an objection.
Rule 3.13 Opinions; Definition of Votes
A. Filing Opinions. Opinions may be by Summary Opinion form, memorandum or of such length and detail as the Court determines. See Sections 48 and 49 of Title 20; Johnson v. State, 847 P.2d 810 (Okl.Cr.1993). All opinions delivered by the Court shall, immediately upon the delivery thereof, be handed to the Clerk to be recorded, and it shall be the duty of the Clerk to mail copies to all interested parties when recorded.
B. Definitions of Votes.
(1) Concur.--the The voting judge agrees with both the rationale and result reached in the opinion.
(2) Specially Concur.--the The voting judge agrees with the rationale and result reached, but would like to add specific authority or explanation to the rationale used in the opinion.
(3) Concur in Results.--the The voting judge agrees with the result reached in the majority opinion, but does not agree with the rationale used.
(4) Concur in Part and Dissent in Part.--the The voting judge agrees with the rationale and/or the result of a particular issue(s) in the opinion, but disagrees with the rationale and/or the result of other issue(s).
(5) Not Participating.--the The judge has not participated in the vote on the decision.
(6) Recused.--the The judge has elected to disqualify himself/herself from participating in the vote or the case.
(7) Dissent.--the The voting judge disagrees with the rationale and result reached in the majority opinion.
Rule 3.14 Rehearing; Requisites of Petition
A. A petition for rehearing, unless otherwise ordered by this Court, shall be made by the attorney of record, and filed with the Clerk within twenty (20) days from the date on which the opinion in the cause was filed.
B. A petition for rehearing shall not be filed, as a matter of course, but only for the following reasons:
(1) Some question decisive of the case and duly submitted by the attorney of record has been overlooked by the Court; ,or
(2) The decision is in conflict with an express statute or controlling decision to which the attention of this Court was not called either in the brief or in oral argument.
C. Such petition shall briefly state the grounds upon which the attorney of record relies for a rehearing. The overlooked question, statute or decision must be specifically set forth in the petition. If the application is granted, the cause shall be assigned for rehearing. Additional time may be granted for argument or briefing.
D. If a petition for rehearing is not filed within twenty (20) days, the decision shall be final.
E. A petition for rehearing may be filed only in regular appeals, as defined by Rule 1.2.
Rule 3.15 Mandate; Stay; of Mandate Further Petition for Rehearing
A. Issuance of Mandate. After the expiration of twenty (20) days from the filing of a decision in a regular appeal, the Clerk shall issue a mandate to the court in which the Judgment and Sentence was rendered in accordance with the decision of this Court. PROVIDED HOWEVER, nothing in these Rules shall prohibit this Court, where necessary, from directing the issuance of the mandate forthwith upon the delivery and filing of the decision. The Court's action shall be without prejudice to the filing of a petition for rehearing as set out in Rule 3.14.
B. Mandate Stayed. If a petition for a rehearing is timely filed after the filing of a decision, the mandate shall not issue until the disposition of the petition for rehearing, unless the mandate was issued at the time of the filing of the decision, in which case the mandate may be withdrawn pending the resolution of the rehearing. After the ruling on the petition for rehearing, the mandate shall be issued forthwith. Provided, further, that in the event the petition for rehearing is granted and the decision originally rendered withdrawn, the aggrieved party shall have fifteen (15) days within which to file a petition for rehearing, but in no event shall either party be entitled to more than one (1) petition for rehearing. When the petition for rehearing has been decided, the mandate shall issue forthwith. The mandate shall not be recalled, nor stayed pending an appeal to any other court, nor shall bail be allowed by this Court pending appeal from a final decision of this Court, unless a majority of the Court, for good cause shown, recalls or stays the mandate.
Rule 3.16 Notification of Mandate
The Clerk of this Court shall notify the clerk of the trial court and the office of the district attorney, or if an appeal from a municipal court of record, the municipal attorney, that the mandate has been issued.
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. 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.
(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 (1)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 Rules 2.2, 2.3, and 2.4.
B. Contents of the Transcript. The transcript shall include the proceedings held on the court's acceptance of the plea, the pronouncement of the Judgment and Sentence and the hearing on the application to withdraw the plea of guilty or nolo contendere.
C. Contents of Petition. The petition for a writ of certiorari shall consist of the following:
(1) The trial court from which the appeal is lodged and the trial court case number;
(2) The crime for which the petitioner was sentenced;
(3) The Judgment and Sentence imposed and the date of pronouncement;
(4) The date the application to withdraw the plea of guilty or nolo contendere was filed and the date it was denied by the trial court;
(5) The errors of law urged as having been committed during the proceedings in the trial court which were raised in the application to withdraw plea;
(6) The nature of the relief the petitioner seeks; and
(7) The statute under which the petitioner is appealing.
D. Brief in Support. A brief in support shall be filed within thirty (30) days from the date the notice to transmit record on appeal is filed by the Clerk of this Court. See Section IX for capital cases.
E. Answer Brief. This Court may then direct either the district attorney, municipal attorney or the Attorney General to file an answer brief, if necessary. While not required to respond unless directed by the Court, the district attorney, municipal attorney or the Attorney General may file an answer brief to the petition and brief on their own motion within thirty (30) days from the filing of the petitioner's brief. PROVIDED HOWEVER, in instances where a sentence of death has been imposed upon a petitioner, the Attorney General shall respond within sixty (60) days from the filing of the petitioner's brief.
Rule 4.4 Service of Petition and Brief in Support on District Attorney and Attorney General
A copy of the petition for a writ of certiorari and the brief in support shall be served on the district attorney or municipal attorney who prosecuted the petitioner and upon the Attorney General of the State of Oklahoma within five (5) days from the date of the filing of the petition and brief. See Rule 1.9(B). The petition and brief in support shall contain a certificate of service on the opposing counsel certified by the attorney of record for the petitioner.
Rule 5.2 Appeal from Final Judgment
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 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 petition in error and supporting brief, WITH A CERTIFIED COPY OF THE ORDER ATTACHED must be filed with the Clerk of this Court. The petition in error shall state the date and in what District Court the Notice of Post-Conviction Appeal was filed. 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 the final order of the District Court is filed with the Clerk of the District Court. If post-conviction 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 Rule 9.7 (A)(4) for page limits in capital cases.
(4) This Court may 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.
(5) Failure to file a petition in error, with a brief, within the time provided, is jurisdictional and shall constitute a waiver of right to appeal and a procedural bar for this Court to consider the appeal.
(6) The record on appeal of a denial of post-conviction relief shall 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;
(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.
(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.
(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 20__, 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 Duties of Court Clerks and Court Reporters
A. The court clerk shall 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 file-stamped 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., unless an extension is requested by the court clerk and granted by this Court.
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 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 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 filing of the order. Except for the specific time requirements of this Rule, the provisions of Rule 2.3(B) apply.
SECTION VI. APPEAL BY STATE FROM ADVERSE RULING OF MAGISTRATE
Rule 6.1 Commencement of Appeal
A. An appeal may be taken from a magistrate's adverse ruling to the State in accordance with the provisions of Sections 1089.1 through 1089.7 of Title 22. At the conclusion of the appeal, the reviewing judge shall enter an order containing findings of fact and conclusions of law supporting the ruling. See Sections 1089.5 and 1089.6 of Title 22.
B. In the event the reviewing judge reverses the magistrate's order of dismissal, that order constitutes an interlocutory order which may only be raised in a regular appeal, in the event of a conviction. In the event the reviewing judge affirms the magistrate's order dismissing the charges, that order constitutes a final appealable order by the State.
C. The reviewing judge shall execute a written order containing findings of fact and conclusions of law along with directions as to the proper order to be issued by the Magistrate.
D. Time for Lodging State Appeal
(1) The State must file notice of intent to appeal and designation of record with the trial court clerk within ten (10) five (5) days from date the reviewing judge's ruling is pronounced in open court or filed in the office of the court clerk, whichever date is earlier. The filing of the Notice of Intent to Appeal in the District Court is jurisdictional and failure to timely file constitutes waiver of the right to appeal. The Notice of Intent to Appeal, together with a certified copy of the reviewing judge's order, shall also be filed by the trial counsel seeking the appeal with the Clerk of this Court within ten (10) days from the date the Notice is filed in the trial court. See 22 O.S.2001 § 1089.2 Rule 2.5 and Form 13.4.
(2) See Rule 1.4 for time requirements and Section XI for procedure.
SECTION VII. PROCEDURE FOR APPEALING FROM AN ORDER ADJUDICATING A JUVENILE TO BE DELINQUENT; FROM A FINAL ORDER CERTIFYING OR DENYING CERTIFICATION OF A JUVENILE TO STAND TRIAL AS AN ADULT; OR FROM A FINAL ORDER GRANTING OR DENYING REVERSE CERTIFICATION; OR SENTENCING UNDER THE YOUTHFUL OFFENDER ACT
Rule 7.1 Courts from Which Appeals are Lodged
An appeal may be lodged by either party under the Rules of this Court from: any order adjudicating a child delinquent, or from any other order certifying or denying certification of a juvenile to stand trial as an adult entered by the juvenile division of the District Court, or from any other order granting or denying reverse certification under Section 1104.2 of Title 10.
1. an adjudication of juvenile delinquency or certification of a juvenile to stand trial as an adult or deny such certification under § 7303 - 4.3(F) and 6.2(A), of Title 10;
2. an order certifying a person as a child or denying the request for certification as a child under § 7306 - 1.1(G), of Title 10;
3. an order certifying or denying certification of a person as a youthful offender or juvenile under § 7306 - 2.5(E) and 2.6(F)(5), of Title 10;
4. an order certifying or denying certification for imposition of an adult sentence under § 7306 - 2.8(E), of Title 10;
5. a conviction as a youthful offender under § 7306 - 2.6(G), 2.8(F), or 2.8(G), of Title 10;
6. an order transferring custody under § 7306 - 2.10(H), of Title 10.
Rule 7.2 Notice of Intent to Appeal
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, tThis 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 and youthful offender proceedings.
Rule 7.3 Time for Perfecting Appeal; Extension Request; Record of Proceedings
A. Perfecting an Appeal. In order to perfect an appeal from any juvenile or youthful offender proceeding, the petition in error, certified copy of original record, transcript of proceedings and brief shall be filed with the Clerk of this Court within sixty (60) days from the date the juvenile division of the District Court trial court enters an a final order adjudicating a juvenile as delinquent, or a final order is entered certifying or denying certification of a juvenile to stand trial as an adult. , or sentencing under the provisions of the Youthful Offender Act.
B. Extensions. See Rule 3.2(C); however, insofar as juvenile these proceedings are sui generis and time is of the essence, the court reporter shall be required by the District Court to expedite the record of the proceedings being appealed.
C. Preparation of Record and Transcripts. To ensure the appeal is perfected within sixty (60) days, as required by Section 1123 of Title 10 and Rule 7.5, the record and transcripts shall be completed and filed with the District Court clerk, and immediately transmitted to the Clerk of the Court of Criminal Appeals and appellate counsel within forty (40) days of the entry of the trial court’s order. If the record is not complete within forty (40) days of the trial court’s order, a Notice of Non-Completion of Record shall be sent to the Clerk of the Court of Criminal Appeals, explaining the cause for the delay. A show cause hearing in this Court may be scheduled.
Rule 7.4 Duties of Court Clerk
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 transmittalwithin 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, . However, unless the appeal is relating to an issue of certification or reverse certification in which instance the dates established in the scheduling order shall control. PROVIDED HOWEVER, tThe 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 7.5 Petition in Error; Time for Filing; Contents; Brief
A. Petition in Error. A petition in error shall be filed within sixty (60) days from the date of the order of the District Court to invoke the jurisdiction of this Court.
B. Contents of Petition. The appellant's petition in error must contain the following information:
(1) The type of appeal and authority for such appeal;
(2)(1) The case number and the court from which the appeal is lodged;
(3)(2) The offenses(s) upon which the juvenile adjudication or cert-ification final order is premised;
(4)(3) The date on which the court order was entered and the name of the judge;
(5)(4) Whether or not the juvenile person has been admitted to bail, is under probation or is satisfying the court order; and,
(6)(5) The nature of the relief being sought.
C. Brief. A brief in support, or An Application for Accelerated Docket, as applicable, must shall be filed with the petition in error. See Section XI. for certification and reverse certification cases. The appellant's brief or Application for Accelerated Docket as applicable, shall be served on the adverse party within five (5) days from the date on which the brief or application is filed, and the appellant's brief must contain a certificate of service. See Rules 1.9(B) and 3.4(A). See form 13.14.
D. Response Brief. The adverse party is granted Response Brief shall be filed within twenty (20) days from the date the appellant's brief is filed. See Form 13.15.to file an answer brief or Response to Application, as applicable. The cause will be submitted for decision if the adverse party fails to file a response brief within the time allowed.
E. Use of Juvenile's Initials. Pursuant to Section 1123.1 of Title 10, tThe parties and this Court shall identify the juvenile person by his/her initials in order to protect the anonymity. of the juvenile.
Rule 9.3 Briefs; Time Limitations; Oral Argument
A. Brief in Chief. The brief in chief of the appellant shall be filed within one hundred and twenty (120) days of the filing of the notice directing transmission of the record from the clerk of the District Court to the Clerk of this Court and Appellant's counsel as enumerated in Section 701.13(A) and (D) of Title 21. The brief in chief of the appellee shall be filed within sixty (60) days of the filing of the appellant's brief in chief. The brief in chief of either party shall not exceed one hundred (100) typewritten, 8-1/2 x 11-inch pages in length, and utilize not smaller than 10 point type shall not use more than 12 characters per inch in the body of the brief. See Rule 3.5(E)
B. Issues. Both parties must brief the two determinations to be made by this Court in its mandatory sentence review as set forth in Rule 9.4.
C. Reply Brief. A reply brief may be filed by the appellant within twenty (20) days of the filing of the appellee's brief in chief. The reply brief shall only respond to the appellee's brief in chief, and is limited to twenty (20) pages in length.
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.
E. Waiver of New Propositions, Conditional Filing. Propositions of error advanced for the first time in any reply or supplemental brief will be deemed forfeited for consideration. See Brown v. State, 871 P.2d 56 (Okl.Cr.1994); Castro v. State, 745 P.2d 394, 404 (Okl.Cr.1987). Any supplemental brief tendered for filing, as used in these rules, shall mean the brief has been accepted for filing ONLY. See Rule 3.4(F)(2). New propositions of error may be advanced in a supplemental brief only on an issue of first impression decided after an appellant's brief-in-chief is filed but before the appellant's case is decided by this Court; however, the application to file supplemental brief, with brief attached, containing the new proposition must be tendered for filing within thirty (30) days after the issue of first impression is published. Supplemental briefs containing new propositions filed after this thirty-day period will be deemed forfeited for consideration. If the application is granted, the Court may direct a response from the appellee, if required. For purposes of this Rule, an "issue of first impression" is defined as one where the result was not dictated by precedent existing at the time an appellant was convicted at trial, one which was susceptible to debate among reasonable minds, and is shown to be retroactively applicable to appellant's trial. Also for purposes of this Rule, "published" here refers to the date of the Oklahoma Bar Journal in which the opinion first appears; or the official slip opinions released by federal courts. In all such briefs, this Court may not consider the brief's contents if they are not timely, or otherwise properly before the Court.
F. Oral Argument. Oral argument shall be set in all capital cases pursuant to Section 701.13(D) of Title 21. The time and date of the oral argument shall be set by this Court. Each party shall be allowed a maximum of forty-five (45) minutes, with the appellant being allowed fifteen (15) additional minutes for rebuttal. Oral arguments may be electronically recorded to allow judges not in attendance to review and participate in the decision of the case. Allegations of error properly raised in the briefs, but not argued, are not deemed waived for consideration.
G. Extensions of Time to Brief. See Rule 3.4(D).
Rule 9.4 Mandatory Sentence Review; Time for Disposition
All capital cases shall be assigned as soon as they are at issue and their disposition will be in substantial compliance with the time limits set in Section 701.13(D) of Title 21. Upon submission, this Court shall conduct a mandatory sentencing review, wherein this Court shall consider the punishment imposed as well as any claimed errors. With regard to punishment, this Court shall determine: (1) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; , and (2) whether the evidence supports a jury's or judge's finding of a statutory aggravating circumstance.
Rule 9.7 Post-Conviction Procedures in Capital Cases.
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:
(a) Whether the application is an original or a subsequent application for post-conviction relief;
(b) The District Court case from which review is being sought, including the case number at trial;
(c) A procedural history of the case, including proceedings in the District Court;
(d) A copy of the Judgment and Sentence of the District Court and the death warrant, if an original application, or copies of earlier post-conviction applications, if a subsequent application;
(e) The case number of the petitioner's direct appeal, together with the dates the direct appeal brief-in-chief and/or reply brief were filed if an original application;
(f) Any supplementary materials and discovery requests submitted in accordance with subsection 9.7(D) of this Rule;
(g) Argument and authority in the same manner as direct appeal briefs, attached as an addendum. See Rule 3.5; and
(h) A certified copy of the District Court's determination of indigency, if applicable, together with a statement of any changes in financial condition since the date of determination.
(4) The arguments-and-authorities section of the application shall not exceed fifty (50) pages in length. All stylistic and spacing requirements set forth in Rule 3.5(D) through (F) apply. Any requests for additional pages must be approved by this Court before the petitioner's application is filed.
(5) This Court may direct the respondent to file an answer brief if it deems one necessary to the resolution of the issues raised in the petitioner's application and brief. See Section 1089(D)(3) of Title 22. It shall have the same size limitations as the petitioner's brief.
B. Issues Raised
(1)Issues raised on an application for post-conviction relief shall be limited to those set forth in Section 1080 of Title 22, which shall be applied in accordance with the scope of appellate review set forth in Section 1089(C). All grounds for relief which were available to the petitioner before the last date on which an application could be timely filed shall be set out in the application or be deemed waived.
(2) The application shall state specific facts explaining why each claim was not or could not be presented on direct appeal; and how each claim supports a conclusion that the outcome of the trial would have been different but for the errors, or that the petitioner is factually innocent. These specific facts shall be supported by materials found in the record made at trial or filed in accordance with subsection 9.7(D) of this Rule or by caselaw.
(3)No application may be amended or supplemented after the time specified in Section 1089(D) of Title 22. This Court shall not consider in the original application any amendments to the application or supplementations not filed in accordance with Rule 9.7(D). Any amended or supplemental applications accepted for filing after the time specified in Subsection 9.7(A)(2) shall be treated as a subsequent application. See Rule 9.7(G).
C. Good Faith Filing. By filing any document with this Court, the attorney of record or, if not represented, the party, is certifying that to the best of that person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) It is not being presented for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation;
(2) The claims and other legal contentions in the application and other documents are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; and
(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
If this Court, after providing notice and a reasonable opportunity to respond, finds the materials were filed in violation of this Rule and Section 1088.1 of Title 22, it may impose an appropriate sanction, including but not limited to assessment of costs and expenses, contempt of court proceedings or dismissal of the application. Such dismissal shall constitute forfeiture of a petitioner's right to pursue post-conviction proceedings in this Court. See Sections 1088.1 and 1277(E) of Title 22.
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.
(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.
(1) This Court shall review the application for post-conviction relief in accordance with Section 1089(D)(4) of Title 22.
(2) If this Court determines controverted, previously unresolved factual issues material to the legality of the petitioner's judgment or sentence do exist and otherwise meet the requirements of Section 1089(D)(4) of Title 22, this Court shall enter an order remanding to the District Court in which the sentence was imposed, designating the issues of fact to be resolved and the method by which the issues shall be resolved. Upon remand, the parties and District Court shall adhere to the time constraints set forth in Section 1089(D)(6) of Title 22. PROVIDED, HOWEVER, this Court shall retain jurisdiction of all applications for post-conviction relief at all times.
(3) Nothing herein shall preclude the Attorney General from being present and/or participating in the proceedings in the District Court.
F. Review after remand. Either party may seek review by this Court of the District Court's determination of the issues upon remand in accordance with the following procedure:
(1) This review is initiated by filing with the District Court within ten (10) days from entry of the District Court order a Notice of Intent to Seek Review and Designation of Record.
(2) The party seeking review must also file with the Clerk of this Court within thirty (30) days from entry of the District Court order a petition in error, together with a copy of the Notice of Intent to Seek Review and Designation of Record. The petition in error shall contain the following:
(a) The District Court from which review is being sought and the District Court case number;
(b) The procedural history of the case; and
(c) A certified copy of the District Court's order from which review is sought, together with findings of fact and conclusions of law.
(3) The filing of the above documents in subsections (1) and (2) within the specified times is mandatory; failure to file in a timely manner constitutes waiver of the right to seek review by this Court, and this Court may adopt the findings of the District Court and enter an order with or without additional briefing by the parties.
(4) A copy of the Notice of Intent to Seek Review and Designation of Record shall be served on the court reporter, the opposing party, the district attorney and the Attorney General within ten (10) days from entry of the District Court order.
(5) Due to the fact this Court will only remand when an evidentiary hearing is required to be held, the court reporter shall prepare and file all transcripts of the evidentiary hearing within sixty (60) days from the date of the evidentiary hearing and shall include copies of all exhibits presented during the hearing in accordance with Rule 2.2(B). Extensions of time are not favored; any extensions of time in which to prepare the transcripts shall be requested in accordance with Rules 3.2(C)(2) and 9.2(C).
(6) At the conclusion of the evidentiary hearing, the record shall be returned to this Court in accordance with Rule 2.3, within sixty (60) days from the date of the evidentiary hearing.
(7) Petitioner's supplemental brief is limited to issues addressed at the evidentiary hearing and shall be filed within forty-five (45) days from the date the record is returned to this Court. Respondent shall file a response brief within twenty (20) days after the petitioner's supplemental brief is filed.
(8) No oral argument shall be required on an application for post-conviction relief.
G. Subsequent application.
(1) A subsequent application for post-conviction relief shall not be considered, unless it contains claims which have not been and could not have been previously presented in the original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22.
(2) An original application for post-conviction relief not filed in a timely manner shall not be considered, unless it contains claims which have not been and could not have been previously presented in a timely original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22.
(3) No subsequent application for post-conviction relief shall be considered by this Court unless it is filed within sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis for a new issue is announced or discovered.
SECTION X. EXTRAORDINARY WRITS
Rule 10.1 Types of Extraordinary Writs; Jurisdiction; Duties of District Court Clerk
A. This Court may entertain certain extraordinary writs which arise out of criminal matters. Such extraordinary writs include writs of mandamus, prohibition, and habeas corpus. This Court will only entertain such writs if petitioner has been denied relief in the District Court. See, e.g., McNeil v. Greenway, 815 P.2d 1202, 1203 (Okl.Cr.1991), In re Dykes, 13 Okl. 339, 74 P. 506, 507 (1903).
B. 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 for extraordinary relief 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’s denied relief:order is filed in the District Court:
(1) A petition and supporting brief setting forth the relief requested which shall contain a statement of facts, the trial court from which the appeal is lodged and the District Court case number, errors of law urged as having been committed during the proceedings in the trial court and citation of legal authority supporting the petition;
(2) A certified copy of the original record applicable to the writ which shall include a copy of the order entered by the trial court;
(3) A certified copy of any supporting evidence presented to the District Court upon which the request for relief is predicated; and,
(4) The original transcript of any proceedings conducted on the petition, if applicable.
D. It shall be the duty of the clerk of the trial court to mail, no later than one (1) day after the order granting or denying extraordinary relief is filed, a certified file-stamped copy of the order to the Petitioner and/or Counsel of record. The clerk of the trial court shall include a certificate of mailing with the order.
Rule 10.5 Perfecting an Application Petition for Extraordinary Writ.
An application petition for an extraordinary writ shall not be perfected until the following documents are filed:
(1) A petition, original and seven (7) copies, shall include the case number, the subject matter of the District Court proceedings, and state the nature of the relief sought. The moving party shall be designated as petitioner and the responding party as respondent.
(2) An original and seven (7) copies of a brief which sets forth arguments and authorities supporting the assertions in the petition.
(3) A certified copy of the District Court order shall be attached to the petition.
(4) When a petitioner seeks to interrupt a District Court proceeding, the petitioner shall state the date the ruling or order was entered, from which the relief is being sought, and the date of the next scheduled hearing.
(5) There shall also be filed a certified copy of the original record and either the original or certified copy of the transcript, where appropriate.
Rule 10.6 Requirements for Particular Writs
A. Writ of Prohibition. Petitioner has the burden of establishing (1) a court, officer or person has or is about to exercise judicial or quasi-judicial power; (2) the exercise of said power is unauthorized by law; and (3) the exercise of said power will result in injury for which there is no other adequate remedy. See Maynard v. Layden, 830 P.2d 581, 583 (Okl.Cr.1992). The adequacy of a remedy is to be determined upon the facts of each particular case. See State ex rel. Wise v. Clanton, 560 P.2d 588, 591 (Okla.Cr.1977).
B. Writ of Mandamus. Petitioner has the burden of establishing (1) he has a clear legal right to the relief sought; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief. See Woolen v. Coffman, 676 P.2d 1375, 1377 (Okl.Cr.1984). Mandamus is also appropriate to ensure procedural due process requirements are followed in administrative proceedings. See Waldon v. Evans, 861 P.2d 311, 313 (Okl.Cr.1993). Provided however, in matters involving disqualification of judges in criminal cases, if a hearing before the second judge results in an order adverse to the movant, he/she shall have not more than five (5) days from the date of the order to institute a proceeding in this Court for writ of mandamus. See Rule 15, Rules for District Courts of Oklahoma, Title 22, Ch. 18. App. (2003)
C. Writ of Habeas Corpus.
(1) Petitioner has the burden of establishing confinement is unlawful. See Phillips v. Page, 451 P.2d 23, 24 (Okl.Cr.1969); Shelton v. State, 381 P.2d 324 (Okl.Cr.1963). Petitioner shall attach a certified copy of both the Judgment and Sentence and the District Court order denying relief with his petition to meet his burden of proof. In the absence of an extreme emergency, this Court will not entertain an original application for a writ of habeas corpus where such application has not been presented to and refused by the District Court of the county where petitioner is restrained. In re Dykes, 13 Okl. 339, 74 P. 506, 507 (1903). The writ of habeas corpus has not been suspended or altered by the Post-Conviction Procedure Act so long as the statutory appeal procedures enacted by the Legislature have been first exhausted. The writ of habeas corpus is not an authorization to bypass the statutory appeal process. Twyman v. Oklahoma Pardon and Parole Board, 837 P.2d 380 (Okl.Cr.1992). See also Sections 1331 through 1355 of Title 12.
(2) If habeas corpus is denied in the District Court, the transfer or removal of the movant out of the jurisdiction of that court shall be stayed for ten (10) days if the petitioner gives notice of intent to seek a writ in this Court.
D. Rehearing. Once this Court has rendered its decision on an extraordinary writ, that decision shall constitute a final order. A petition for rehearing is not allowed. The Clerk of this Court shall return to the movant any petitions for rehearing tendered for filing.
Rule 11.2 Automatic Assignment of Certain Cases to the Accelerated Docket
A. Appeals arising out of the following cases will be automatically assigned to the Accelerated Docket upon the filing of a petition in error:
(1) Misdemeanors, provided however, all appeals from a denial to withdraw plea of guilty shall be perfected in accordance with Section IV, Rule 4.1 et seq.;
(2) Revocation of Suspended Sentence;
(3) Appeals of the conditions of probation of an order deferring judgment, with or without an application to withdraw plea, and/or acceleration of a deferred Judgment and Sentence. See Rule 1.2(D)(5);
(4) (1) Certification and reverse certification of juvenile offenders;
(2) Order granting or denying imposition of Adult Sentence under Youthful Offender Act;
(3) Adjudication as Delinquent; and
(5) (4) Actions brought pursuant to Section 1089.1 to 1089.7 of Title 22 (State Appeals from Adverse Ruling of Magistrate).
Provided that no case on appeal will be assigned to the Accelerated Docket if that cause was consolidated for trial with other counts resulting in convictions for which appellate relief is sought, and those other convictions are not among those cases enumerated above. If assignment to the Accelerated Docket is desired in such a case, the procedures of Rule 11.3 should be followed with respect to all counts contained in a single case.
B. Upon the filing of a petition in error under Rule 3.1, the above cases shall be assigned to the Accelerated Docket under this Section and the Clerk of this Court shall send notice of such assignment to all named parties. Either party may move within ten (10) days to have the cause removed from the Accelerated Docket. Good cause must be stated in support of the request. Failure to object within the allotted time period waives any future objections.
C. All pleadings and records required by Rule 11.5 shall be filed within the time requirements for regular appeals. See Sections I, II and III. PROVIDED HOWEVER, juvenile appeals shall be filed within the time requirements set out in Section VII and the scheduling order issued by this Court. See Rule 7.5.
D. There is no limitation on the number of issues which may be raised in cases automatically assigned to the Accelerated Docket by reason of this Section.
E. When a city or municipality is a party, a certified copy of the specific ordinance(s) involved in the case shall be included in the record. It shall be the responsibility of the city or municipality to ensure the ordinance(s) are included in the record for appellate review. See Hishaw v. City of Oklahoma City, 822 P.2d 1139 (Okl.Cr.1991).
F. In all appeals properly assigned to the Accelerated Docket, oral argument shall be scheduled, giving each party fifteen (15) minutes to argue to the Court the propositions or issues raised in the appellant's brief. Failure to argue a proposition during oral argument does not waive consideration of that argument on appeal.
Rule 11.5 Forms to be Used Relative to the Accelerated Docket
A. Forms to be used for the Accelerated Docket. The forms contained in Section XIII of these Rules are to be used as an application or a response as it relates to the Accelerated Docket procedure. Such forms are set forth in Section XIII as:
1. Form 13.13, Accelerated Docket Waiver (of appellant or defendant);
2. Form 13.14, Application for Accelerated Docket--Fast Track (to be used by appellant); and
3. Form 13.15, Response to Application for Accelerated Docket--Fast Track (to be used by appellee).
(1) Forms 13.13, 13.14 and 13.15 together with exhibits called for, are to be used in lieu of filing a brief by the appellant or appellee in the ordinary course of the appeal. A party who fails to object to being placed on the Accelerated Docket pursuant to Rule 11.2(A)shall be deemed to have waived the right to the standard appeal procedure and the right to use a brief therein. PROVIDED HOWEVER, such party may move within ten (10) days of the date the petition in error is filed for leave to file a standard brief in accordance with Rule 3.5(D). The granting of such motion shall be within the discretion of this Court and the same will be considered only upon a showing of extraordinary circumstances. See e.g. City of Nichols Hills v. Farris, 798 P.2d 227 (Okl.Cr.1990).
(2) A Reply Brief, Supplemental Brief or Amicus Curiae Brief shall not be filed except by prior approval of the Court in accordance with Rule 3.4(F). PROVIDED HOWEVER, the page limitations on additional briefs shall be set by the Court at the time the request is approved.
B. Propositions to be Presented. The propositions of error shall be presented with reference to the exact location in the transcript or record where such error may be found, together with the propositions of error and case authority as it relates to same by appellant or appellee.
1. The propositions of error shall be specific and not general or conclusory in nature.
2. Each proposition shall contain only one (1) issue.
3. Each proposition shall be specific with reference to the transcript, together with the appropriate citations of cases or statutes pertaining to such error.
4. Case authority shall be cited to specific page(s). Citation of authority shall include one parenthetic paragraph after the citation explaining why it is cited and how it is relevant to the proposition of error in the current case.
5. If one of the allegations of error is "insufficiency of evidence", the appellant must specify which element or elements of the offense have not been proved, together with appropriate authority and citations to the record if appropriate.
6. If one of the allegations of error is ineffective assistance of counsel, appellant must specify as to how counsel was ineffective, together with appropriate references to the record.
C. Failure to follow the Rules set forth in this Section may, upon the Court's oOrder or motion of the adverse party, result in the rejection of the application or dismissal of the appeal.
Rule 12.2 Activation and Appointment of Division Panels
A. Emergency Appellate Panels of the Emergency Appellate Division shall be activated pursuant to the provisions of Section 60.1 et seq. of Title 20, when an emergency is declared to exist. From the list of judges appointed to the Emergency Appellate Division by the Chief Justice of the Supreme Court, the Presiding Judge of the Court of Criminal Appeals shall appoint three (3) judges to each Panel and shall appoint a Panel Presiding Judge.
B. After activation and appointment, each panel shall serve during the pendency of the emergency, or until the next July 1, or until disposition of cases assigned.
C. The Presiding Judge of this Court shall determine the number of Emergency Appellate Panels necessary and shall retain the authority and discretion to replace panel judges or reorganize panels as necessary.
D. Each panel of the Emergency Appellate Division shall conduct the business and practice before it in accordance with these Rules and the Rules of the Oklahoma Court of Criminal Appeals, Ch. 18, App. of Title 22.
E. The Presiding Judge of each panel shall determine where the panel shall sit and how the panel shall conduct the business and practice before it within the administrative limitations set forth by the Court of Criminal Appeals.
SECTION XIII. FORMS
Rule 13.0 Mandatory Forms to be Utilized in Criminal Cases in the State of Oklahoma
The following forms shall be utilized by trial courts and parties in the prosecution and appeal of criminal cases in the State of Oklahoma. The forms may be computerized with additional lines and spaces added as needed. In addition, appendices/exhibits/attachments may be utilized to supplement the forms (for example - rules and conditions of probation, payment schedule for fines and/or costs, etc.). Local requirements may be added to the forms but the format and specific provisions in the forms shall not be altered. The forms are as follows:
Form 13.1 Motion to Check Out Material
[Use style of case in which filed]
IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF OKLAHOMA
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____________________________, |
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MOTION TO CHECK OUT MATERIAL
________________________, attorney for ________________________ moves for permission to check out the following material (Itemize each item requested and state why the item is needed):
1. ___________________________________________________
2. ___________________________________________________
3. ___________________________________________________
It is understood that if permission to check out material is granted, movant will be responsible for the safekeeping of the above listed items and is responsible for assuring that the items are returned to the Court in the same condition and form in which they were received by movant. Movant shall return the above listed items to the Court of Criminal Appeals on or before the date specified in the Order, but in no event more than five (5) business days from the issuance of the Court's Order.
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_________________________ _________________________ _________________________ _________________________ |
ORDER
Permission is granted for movant to check out the above listed items. The movant is responsible for the safekeeping and integrity of the items while they are in movant's custody. The items are to be returned to the Court by __________, 19 20____.
The Court Clerk shall prepare an itemized list of the items received and require the movant to execute an acknowledgement of the receipt. If the materials are mailed, the Court Clerk shall certify the items mailed. The completed itemized receipt shall be filed with this Order. When the movant returns the material to the Court, movant shall submit an affidavit listing the items checked out, the date the items were checked out, the date on which the items were returned, and certifying that movant is returning the items in the same condition and form in which movant checked them out.
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_________________________ |
RECEIPT
I hereby certify that I received the above items on the __________ day of __________, 19 20____. I further acknowledge that the above listed items must be returned in the same condition and form to the Clerk of the Court of Criminal Appeals on __________, 19 20____, and that I will provide an affidavit to the Court certifying the same. I assume sole responsibility for the safekeeping and return of the above listed items.
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_________________________ |
RETURN RECEIPT
I hereby acknowledge that the above items were returned to the Court on the __________ day of __________, 19 20____, and that movant, __________, filed, with the returned items, an affidavit certifying that movant is returning the items in the same condition and form in which movant checked them out.
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_________________________ |
LIST OF ITEMS CHECKED OUT
__________ v. State, Case No. __________
Movant acknowledges that on the __________ day of __________, 19 20____, movant received the following items from the Clerk of the Court of Criminal Appeals.
1. ___________________________________________________
2. ___________________________________________________
3. ___________________________________________________
Movant further acknowledges that the above listed items must be returned in the same condition and form to the Clerk of the Court of Criminal Appeals on __________, 19 20____, and that movant will provide an affidavit to the Court certifying the same. Movant assumes sole responsibility for the safekeeping and return of the above listed items.
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_________________________ |
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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__________________________________________
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Subscribed and sworn to before me this ____ day of __________, 19 20____.
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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 20____, and the attached statement sets out the deposits and withdrawals for the last six months.
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By ______________________________________ |
Form 13.3 Pauper's Affidavit
IN THE DISTRICT COURT OF __________ COUNTY
STATE OF OKLAHOMA
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STATE OF OKLAHOMA, Plaintiff, vs. _________________________, Defendant. |
Case No. _________________
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PAUPER'S AFFIDAVIT
I, (Name)_________________________, (Soc.Sec.#)______________________________,
(Address)___________________________________________________________________________,
upon oath, do depose and state:
I. PERSONS IN HOUSEHOLD
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Is Person a Dependent | |||
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Spouse: |
________________________________________________________________________ |
Yes( ) No( ) | |
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Are you claimed as a dependent by parent or guardian? |
Yes( ) No( ) | ||
If so, explain: _____________________________________________________
________________________________________________________________
II. FINANCIAL STATUS--ASSETS (Defendant or person(s) responsible for defendant's support):
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A. |
1. Cash on Hand: $ _________________________
3. Bonds & Securities 4. All Other Possessions of Value: (including tax refunds, notes, accts.
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B. |
1. Current Employment: ___________________________________________________
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C. |
Home and Other Real Estate: |
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D. |
Vehicle(s): |
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E. |
Personal Property: (furniture, appliances, tools, equipment, etc.) |
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F. |
Litigation you or your spouse have pending for recovery of money: |
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III. |
FINANCIAL STATUS—LIABILITIES
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A. |
Charge or Open Accounts: |
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B. |
Housepayment or Rent: |
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C. |
Child Support Obligations |
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D. |
Other Debts: |
IV. OTHER
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A. |
Have you transferred or sold any assets since charges were filed in this case? Yes( ) No( ) If so, describe the buyer and the amount received: |
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B. |
Have you retained counsel in this case or in any other pending criminal case? Yes( ) No( ) If so, state the case number, court, attorney and amount paid to attorney for services: |
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C. |
If you have posted bond, who provided the funds for the bond? |
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D. |
Do you have any friends or relatives who are able and willing to assist you in hiring counsel and paying for transcripts? Yes( ) No( ) If so, have those persons been asked to help? Yes( ) No( )
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E. |
If a friend or relative has given previous financial assistance in this case, including the posting of bond, but is no longer able or willing to do so, an affidavit to that effect from that person shall be attached, stating why such help is no longer available. |
I further swear and affirm that I am without funds or other sources of income to pay an attorney or to pay for transcripts and costs associated with this case. I understand I am under a continuing obligation to keep this Court informed of any changes in my financial status and this Court may conduct another hearing to determine my indigent status at any time.
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_________________________
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Subscribed and sworn to before me this __________ day of __________ 19 20__________.
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State of Oklahoma
_________________________________
My Commission Expires_________ |
COURT CLERK By: _________________________ |
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. __________ ( ) Termination From Drug Court ( ) Youthful Offender – (Sentencing as Adult) |
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 20__________, for:
If certiorari appeal, date of trial court’s denial to withdraw plea ________________.
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) ( ) all convictions arising from the trial had in the above captioned case, whether hereinabove specifically listed or not; or ( ) only the following Counts: _____________________ 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) (B) 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 20__________, to the Clerk of the Oklahoma Court of Criminal Appeals.
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II. APPLICATION FOR DETERMINATION OF INDIGENCYE
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".
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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 INDIGENCYE
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, and the reporter’s acknowledgement of service shall be filed in accordance with Rule 1.15(B); 2.1(B)(3).
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 20__________.
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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 __________, 1920__________.
B. IF NOT INDIGENT, satisfactory arrangements ( )have ( )have not been made for payment of the transcript cost. These financial arrangements were completed on , __________ 1920__________. 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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______________________________________________________ |
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, [For Supplemental Designation of Record, a signed certified mail return receipt card acknowledged by the court reporter(s), together with the attorney’s certificate of mailing attached is sufficient for compliance.] 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 20__________, 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 13.5 Certification of Appeal Rights
Certification of Advice of Appeal Rights
I __________________, trial counsel for the above named defendant, hereby certify that I have advised the defendant of his/her appeal rights and that he/she fully understands the rights of appeal and that the defendant affirmatively states he/she does not want to appeal. this conviction. I further certify I have delivered a copy of this affidavit to the defendant,
_____________________, on the __________day of ___________, 19 20____.
(name)
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Date:___________________________ |
___________________________________ |
Form 13.6 Application to Proceed Pro Se on Direct Appeal
IN THE DISTRICT COURT OF _____________ COUNTY
STATE OF OKLAHOMA
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STATE OF OKLAHOMA, |
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Affidavit of Defendant Requesting to Proceed Pro Se in a Direct
Appeal Pursuant to Section 1051 of Title 22:
1. The district court has explained, and I fully understand, the nature of the crime of which I have been convicted and the severity of the punishment imposed upon me.
2. I understand that I have a constitutional right to the assistance of an attorney in taking an appeal of the judgment against me to the Oklahoma Court of Criminal Appeals and to have an attorney appointed for me if I am unable to afford one.
3. I understand the knowledge and experience that an attorney can provide me.
4. I understand that the conviction(s) I am appealing, if affirmed by the Oklahoma Court of Criminal Appeals, might be used to enhance the punishment of crimes for which I am convicted in the future.
5. I understand that in seeking to take my appeal without assistance of an attorney I am assuming sole responsibility for perfecting and pursuing my appeal in accordance with the Rules of the Oklahoma Court of Criminal Appeals, Ch.18, App. of Title 22, and in accordance with the laws of the State of Oklahoma. I understand that, if I fail to so perfect and pursue my appeal, neither the Oklahoma Court of Criminal Appeals nor any official of the State of Oklahoma is required, or responsible, to correct such failure.
6. I understand that I am precluded from raising, in any subsequent proceeding before this Court, any issue which was raised or could have been raised in my direct appeal. I also understand that I am precluded from raising, in any subsequent proceeding before any court, these issues which could have been raised and any issue concerning the effective assistance of counsel in taking my appeal.
7. I acknowledge that I have not, in any way, been compelled or coerced into waiving and relinquishing my right to assistance of an attorney in taking my appeal. I further acknowledge that I am competent to make said waiver and relinquishment and that it is made knowingly, intelligently and voluntarily.
8. I acknowledge that I have consulted an attorney about my decision to waive and relinquish my right to assistance of an attorney in taking my direct appeal and understand the dangers and requirements I am assuming in representing myself in this matter.
9. I acknowledge that I have been fully advised of my right to assistance of an attorney to take my appeal and the consequences of waiving and relinquishing same.
10. I herewith voluntarily waive and relinquish my right to an attorney, either retained or appointed, to represent me on appeal, and request the Oklahoma Court of Criminal Appeals to so find and allow me to represent myself in all further matters relating to this appeal.
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_____________________________________
STATE OF OKLAHOMA |
___________________________________ ) |
___________, being first sworn under oath, states that he/she signed the above affidavit and that the statements therein are true to the best of his/her knowledge and belief.
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Subscribed and sworn to before me this _______day of _______, 19 20_______.
Form 13.8 Uniform Judgment and Sentence
IN THE DISTRICT COURT OF ______ COUNTY
THE STATE OF OKLAHOMA
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STATE OF OKLAHOMA, |
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DOB: ____________
SS#: ____________
JUDGMENT AND SENTENCE
Now, on this ___ day of ________, 19 20___, this matter comes on before the undersigned Judge, for sentencing and the Defendant, _________________________, appears personally and by Attorney _________________________, the State of Oklahoma represented by _________________________, and the Defendant, having previously:
( ) Entered a plea of guilty
( ) Entered a plea of Nolo Contendere
( ) Been found guilty by jury
( ) Been found guilty by Judge after waiver of jury trial
( ) Other __________________________________________________
to/of the crime(s) of: Statutory Reference
Count ________: ______________________________________________ ____ O.S.______
Count ________: ______________________________________________ ____ O.S.______
Count ________: ______________________________________________ ____ O.S.______
(Attach additional sheet for additional counts or if computerized, add to body of Judgment and Sentence at each appropriate place.)
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The defendant has previously been convicted of _____ (insert number) felony crimes and the sentence has been enhanced in accordance with the provisions set forth in ____ O.S. _____; and, |
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED by the Court that the Defendant, _________________________, is guilty of the above described offenses and is sentenced as follows:
TERM OF IMPRISONMENT
COUNT SENTENCED TO A TERM OF
______ _______________________________________________________________________
______ _______________________________________________________________________
______ _______________________________________________________________________
under the custody and control of:
( ) Oklahoma Department of Corrections;
( ) the _______________ County Sheriff; or
( ) other: ______________________________________________________________________
These terms to be served as follows (consecutive/concurrent):
____________________________________________________________________________________
____________________________________________________________________________________
TERM OF IMPRISONMENT WITH EXECUTION OF SENTENCE SUSPENDED IN PART
(Attach additional sheet(s) to clarify, if necessary)
COUNT SENTENCED TO A TERM OF
______ _______________________________________________________________________
______ _______________________________________________________________________
______ _______________________________________________________________________
with all except the first ___________ suspended under the custody and control of:
( ) Oklahoma Department of Corrections; or
( ) the _______________ County Sheriff,
pursuant to the rules and conditions of probation entered by the court.
These term(s) to be served as follows (consecutive/concurrent):
____________________________________________________________________________________
____________________________________________________________________________________
TERMS OF IMPRISONMENT WITH EXECUTION OF SENTENCE SUSPENDED
(Attach additional sheet(s) to clarify, if necessary)
COUNT SENTENCED TO A TERM OF
________ ____________________________________________________________________
________ ____________________________________________________________________
________ ____________________________________________________________________
under the custody and control of:
( ) Oklahoma Department of Corrections; or
( ) the _______________ County Sheriff,
all of said term(s) of imprisonment suspended pursuant to the rules and conditions of probation entered by the court.
These term(s) to be served as follows (consecutive/concurrent):
____________________________________________________________________________________
____________________________________________________________________________________
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that in addition to the preceding terms, the Defendant is also sentenced to:
FINE
( ) The defendant shall pay a fine of $___________
( ) immediately; or
( ) on or before ________ ___, 19 20__ at the rate of $_________ per ____________, or within ________ days of release from the Department of Corrections.
( ) payment of $__________ is suspended pursuant to Rules and Conditions of probation.
COSTS, VCA, RESTITUTION
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The defendant shall pay costs, fees, and restitution in accordance with the |
RULES AND CONDITIONS OF PROBATION
The rules and conditions of probation as ordered by the court and signed by the defendant, acknowledging his/her understanding of the rules and conditions, are incorporated as Exhibit ______.
ATTORNEY FEES
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The defendant shall pay court-appointed attorney fee in the amount of |
HEARING ON ABILITY TO PAY AFTER INCARCERATION
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The defendant shall report to the District Court of ________ County within _______ days of release for a hearing on the defendant's ability to pay fines and costs pursuant to Section VIII of the Rules of the Court of Criminal Appeals, 22 O.S., Ch. 18, App. |
IT IS FURTHER ORDERED that judgment is hereby entered against the Defendant as to the fines, costs and assessments set forth above.
The Court further advised the Defendant of his/her rights and procedure to appeal to the Court of Criminal Appeals of the State of Oklahoma, and that if he/she desired to appeal and was unable to afford counsel and a transcript of the proceedings, that the same would be furnished by the State subject to reimbursement of the cost of representation in accordance with Sec. 1355.14 of Title 22.
In the event the above sentence is for incarceration in the Department of Corrections, the Sheriff of ___________ County, Oklahoma, is ordered and directed to deliver the Defendant to the Lexington Assessment and Reception Center at Lexington, Oklahoma, and leave therewith a copy of this Judgment and Sentence to serve as warrant and authority for the imprisonment of the Defendant as provided herein. A second copy of this Judgment and Sentence to be warrant and authority of the Sheriff for the transportation and imprisonment of the Defendant as herein before provided. The Sheriff to make due return to the Clerk of this Court, with his proceedings endorsed thereon.
Witness my hand the day and year first above mentioned.
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CLERK'S CERTIFICATION OF COPIES
I, ___________________, Clerk of the District Court of____________ County, State of Oklahoma, do hereby certify the foregoing to be true, correct, full and complete copy of the original Judgment and Sentence in the case of the State of Oklahoma vs. ________________ as the same appears of record in my office.
WITNESS my hand and official seal this ___ day of ________, 19 20___.
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(SEAL) By: |
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SHERIFF'S RETURN
I received this Judgment and Sentence the ___ day of ______, 19 20___, and executed it by delivering the Defendant to the Warden of the Lexington Assessment and Reception Center at Lexington, Oklahoma, on the ___ day of ______, 19 20___. I also certify the above prisoner has served ___ days in the County Jail on the present charge or charges.
_______________________
Sheriff
_______________________
Deputy Sheriff
Form 13.8(A) Additional Findings at Time of Sentencing
[At the time of formal sentencing the sentencing judge, on the record, shall either complete the additional findings or review a form 13.8(A) which has been completed by the parties to ensure its accuracy. Upon completion of the form it shall be ordered filed of record and be attached as Exhibit 1 to the Uniform Judgment and Sentence filed in the case.. ]In accordance with House Concurrent Resolution No. 1001, dated June 19, 1998, references to a sentence matrix refer to the Oklahoma Truth in Sentencing Act.]
EXHIBIT 1: Additional Findings of the Court to Case No. _______
in the District Court of _______ County
I. Original Charges
(a copy of the information may be attached instead)
Please list any additional charges on a separate attached sheet
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Offense |
Statute Citation |
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II. Prior Felony Convictions Used For Enhancement
Please list any additional convictions on a separate attached sheet all prior felony convictions or attach the OSBI rap sheet
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Date |
Statute Citation |
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_______________________ |
III. Prior Charge(s) For Which Order Deferring Sentence Was Entered
Please list any additional charges on a separate attached sheet
III. Enhancer Information
Circle
1. Did the offender commit the current offense with the use of a firearm within the Yes No
immediate possession and control of the offender? If yes, please indicate type of weapon.
___________________________________________________________________________________
2. For persons who are victims of violent crimes, please indicate the age of the victim(s)
___________________________________________________________________________________
3. If the controlling offense was a theft offense (larceny, embezzlement, fraud, concealing stolen property) what was the total amount involved in that offense?
$________________________________________________
4. If the controlling offense was a drug offence, what was the predominant drug and what was the amount of that drug (specify grams, ounces, etc.)?
Drug
Type:_________________________________________________
Quantity:______________________________________________
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IV. Prior Felony Convictions Not Used For Enhancement
Please list any additional convictions on a separate attached sheet
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VI. Other Enhancers Used to Determine Placement on Matrix
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VII. IV.Offender Characteristics
(A copy of the pre-sentence investigation may be attached instead.)
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Race (Circle)
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White Black Hispanic Asian Native Am. |
This Exhibit shall not be admitted into evidence in any future prosecutions.
Certified this ______ day of _____________, ____.
___________________________
Attorney for State
___________________________
Attorney for Defendant
______________________________________
Judge of the District Court
Form 13.9 Certificate of Original Record
CERTIFICATION OF ORIGINAL RECORD
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STATE OF OKLAHOMA |
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I, ________, Court Clerk for ________ County, do hereby certify that the foregoing is a full, true and correct original record in the above entitled cause, as designated. In testimony whereof, I have hereunto set my hand and the seal of this Court this ________day of ________, 19 20________.
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Form 13.10 Uniform Plea of Guilty - Summary of Facts
IN THE DISTRICT COURT OF _____ COUNTY
THE STATE OF OKLAHOMA
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STATE OF OKLAHOMA, SS#______________ D.O.B._________ |
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[NOTE: The trial judge shall ensure the defendant is sworn either prior to completing the Summary of Facts or prior to inquiry by the Court on the Plea. If the defendant is entering a nolo contendere, or other type guilty plea, correct by pen change where term "guilty" used.] |
PLEA OF GUILTY
SUMMARY OF FACTS
Part A: Findings of Fact, Acceptance of Plea
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1. |
Is the name just read to you your true name? |
Yes No | |||||||||||||||||
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If no, what is your correct name?
_____________________________________________________________________ I have also been known by the name(s): _____________________________________________________________________ _____________________________________________________________________ |
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2. |
(a) Do you wish to have a record made of these proceedings by a Court Reporter?
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Yes No | |||||||||||||||||
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(b) Do you wish to waive this right?
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Yes No | |||||||||||||||||
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3. |
Age:______ Grade completed in school:_____________________________________
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4. |
Can you read and understand this form? (If the answer above is no, Addendum A is to be completed and attached.)
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Yes No | |||||||||||||||||
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5. |
Are you currently taking any medications or substances which affect your ability to understand these proceedings?
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Yes No | |||||||||||||||||
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6. |
Have you been prescribed any medication that you should be taking, but you are not taking?
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Yes No | |||||||||||||||||
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If so, what kind and for what purpose?________________________________________
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7. |
Have you ever been treated by a doctor or health professional for mental illness or confined in a hospital for mental illness?
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If yes, list the doctor or health professional, place, and when occurred: ________________________________________________________________________
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8. |
Do you understand the nature and consequences of this proceeding? |
Yes No | |||||||||||||||||
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9. |
Have you received a copy of the Information and read its allegations?
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10. |
A. Do you understand you are charged with: |
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(4) |
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For additional charges: List any additional charges on a separate sheet and label as PLEA OF GUILTY ADDENDUM B.
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B. Are you charged after former conviction of a felony?
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If yes, list the felony(ies) charged:___________________________________________
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Do you understand the range of punishment for the crime(s) is/are: (List in same order as in No. 9 above.) |
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Minimum of ________ to a maximum of ________ and/or a fine of $_______ |
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(2) |
Minimum of ________ to a maximum of ________ and/or a fine of $_______ |
Yes No | |||||||||||||||||
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(3) |
Minimum of ________ to a maximum of ________ and/or a fine of $_______ |
Yes No | |||||||||||||||||
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(4) |
Minimum of ________ to a maximum of ________ and/or a fine of $_______ |
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For additional charges: List any additional punishments on a separate sheet, with additional crimes and labeled as PLEA OF GUILTY ADDENDUM B.
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Read the following statements:
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Do you understand each of these rights?
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13. |
Do you understand by entering a plea of guilty you give up these rights? |
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14. |
Do you understand that a conviction on a plea of guilty could increase punishment in any future case committed after this plea?
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15. |
Is ________________________________ your lawyer?
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Have you talked over the charge(s) with your lawyer, advised him/her regarding any defense you may have to the charges and had his/her advice? |
Yes No | |||||||||||||||||
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Do you believe your lawyer has effectively assisted you in this case and are you satisfied with his/her advice? |
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Do you wish to change your plea of not guilty to guilty and give up your right to a jury trial and all other previously explained constitutional rights? |
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Is there a plea agreement? |
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What is your understanding of the plea agreement? ________________________________________________________________________
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Do you understand the Court is not bound by any agreement or recommendation and if the Court does not accept the plea agreement, you have the right to withdraw your plea of guilty? |
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Do you understand that if there is no plea agreement the Court can sentence you within the range of punishment stated in question 11? |
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Do you understand your plea of guilty to the charge(s) is after: (check one) |
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( ) no prior felony convictions
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What (is) (are) your plea(s) to the charge(s) (and to each one of them)? |
______ | |||||||||||||||||
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24. |
Did you commit the acts as charged in the Information? |
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State the factual basis for your plea(s) (attach additional page as needed, labeled as ADDENDUM C): _________________________________________________________________________
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Have you been forced, abused, mistreated, or promised anything by anyone to have you enter your plea(s)? |
Yes No | |
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26. |
Do you plead guilty of your own free will and without any coercion or compulsion of any kind? |
Yes No | |
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27. |
If you are entering a plea to a felony offense, you have a right to a Pre-Sentence Investigation and Report which would contain the circumstances of the offense, any criminal record, social history and other background information about you. Do you want to have the Report? |
Yes No | |
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28. |
(a) Do you have any additional statements to make to the Court? |
Yes No | |
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(b) Is there any legal reason you should not be sentenced now? |
Yes No | |
HAVING BEEN SWORN, I, the Defendant whose signature appears below, make the following statements under oath:
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(1) |
CHECK ONE:
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______(a) |
I have read, understood and completed this form.
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______(b) |
My attorney completed this form and we have gone over the form and I understand its contents and agree with the answers. See Addendum "A".
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______(c) |
The Court completed this form for me and inserted my answers to the questions.
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(2) |
The answers are true and correct. | |||
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(3) |
I understand that I may be prosecuted for perjury if I have made false statements to this Court. | |||
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___________________________________________
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Acknowledged this ______ day of _______________, 19 20____.
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29. |
I, the undersigned attorney for the Defendant, believe the Defendant understands the nature, purpose and consequence of this proceeding. (S)He is able to assist me in formulating any defense to the charge(s). I am satisfied that the Defendant's waivers and plea(s) of guilty are voluntarily given and he/she has been informed of all legal and constitutional rights. |
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_____________________________________________ |
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30. |
The sentence recommendation in question 19 is correctly stated. I believe the recommendation is fair to the State of Oklahoma.
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31. |
Offer of Proof (Nolo contendere plea)_________________________________________
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______________________________________________
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THE COURT FINDS AS FOLLOWS:
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32. |
A. The Defendant was sworn and responded to questions under oath.
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B. The Defendant understands the nature, purpose and consequences of this proceeding.
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C. The Defendant's plea(s) of _________________ is/are knowingly and voluntarily entered and accepted by the Court.
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D. The Defendant is competent for the purpose of this hearing.
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E. A factual basis exists for the plea(s) (and former conviction(s), if applicable).
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F. The Defendant is guilty as charged: (check as appropriate)
( ) after no prior felony convictions.
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G. Sentencing or order deferring sentence shall be: imposed instanter ( ); or continued until the _____ day of _______________,
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DONE IN OPEN COURT this ______ day of _______________, 19 20____.
____________________________ _____________________________________________
Court Reporter Present JUDGE OF THE DISTRICT COURT
____________________________ _____________________________________________
Deputy Court Clerk NAME OF JUDGE TYPED OR PRINTED
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Part B: Sentence on Plea |
Case No._________________ |
[NOTE ON USE: Part B to be used with the Summary of Facts if contemporaneous with the entry of plea or may be formatted as a separate sentencing form if sentencing continued to future date.]
THE COURT SENTENCES THE DEFENDANT AS FOLLOWS:
TIME TO SERVE
1. You are sentenced to confinement under the supervision of the Department of Corrections for a term of years as follows: (list in same order as in question No. 10 in Part A)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
2. The sentence(s) to run (concurrently/consecutively)___________________________________
_____________________________________________ or NOT APPLICABLE ______________
DEFERRED SENTENCE
1. The sentencing date is deferred until ____________ ____, 19 20___ at ___________ ___.m.
2. You (will/will not) be supervised. The terms set forth in the Rules and Conditions of Probation found in Addendum D shall be the rules you must follow during the period of deferment.
SUSPENDED SENTENCE or SUSPENDED AS TO PART
1. You are sentenced to confinement under the supervision of the Department of Corrections for a term of years as follows:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
to be suspended as follows:
(a) ALL SUSPENDED YES_____ NO_____
(b) suspended except as to the first ________ (months)(years) of the term(s) during which time you are to be held in the custody of the Department of Corrections, the remainder of the sentence(s) to be suspended under the terms set forth in the Rules and Conditions of Probation found in Addendum D.
2. The sentence(s) to run (concurrently/consecutively)
_________________________________________________________________________________
________________________________________________________ or NOT APPLICABLE___________________.
FINES AND COSTS
You are to pay a fine(s), costs, fees and/or restitution to the ________________ County District Court Clerk as set out in Addendum E which is attached and made a part of this Order. [NOTE ON USE: District Courts may develop and utilize schedules for payment of fines and costs as appropriate for each district and attach as Addendum E.]
"NOTICE OF RIGHT TO APPEAL"
Sentence to Incarceration, Suspended or Deferred:
To appeal from this conviction, or order deferring sentence, on your plea of guilty, you must file in the District Court Clerk's Office a written Application to Withdraw your Plea of Guilty within ten (10) days from today's date. You must set forth in detail why you are requesting to withdraw your plea. The trial court must hold a hearing and rule upon your Application within thirty (30) days from the date it is filed. If the trial court denies your Application, you have the right to ask the Court of Criminal Appeals to review the District Court's denial by filing a Petition for Writ of Certiorari within ninety (90) days from the date of the denial. Within ten (10) days from the date the application to withdraw plea of guilty is denied, notice of intent to appeal and designation of record must be filed pursuant to Oklahoma Court of Criminal Appeals Rule 4.2(D). If you are indigent, you have the right to be represented on appeal by a court appointed attorney.
Do you understand each of these rights to appeal? Yes No
Do you want to remain in the county jail ten (10) days before being taken to the place of confinement? Yes No
Have you fully understood the questions that have been asked? Yes No
Have your answers been freely and voluntarily given? Yes No
I ACKNOWLEDGE UNDERSTANDING OF RIGHTS AND SENTENCE IMPOSED.
______________________________________
Defendant
I, the undersigned attorney, have advised the Defendant of his appellate rights.
______________________________________
Attorney for Defendant
Done in open court, with all parties present, this ______ day of __________________ 19 20____.
_______________________________ ______________________________________________
Court Reporter Present Judge of the District Court
____________________________________
Deputy Court Clerk
ADDENDUM "A"
CERTIFICATE OF DEFENSE COUNSEL
As the attorney for the defendant,_____________________________________, I certify that:
1. The Defendant has stated to me that he/she is (able/unable) to read and understand the attached form, and I have: (check appropriate option)
___________ determined the Defendant is able to understand the English language.
___________ determined the Defendant is unable to understand the English language and obtained _______________________________________ to interpret.
2. I have read and fully explained to the Defendant the allegations contained in the Information in this case.
3. I have read and fully explained to the Defendant all of the questions in the Plea of Guilty/Summary of Facts and the answers to the questions set out in the Summary of Facts are the Defendant's answers.
4. To the best of my knowledge and belief the statements and declaration made by the Defendant are accurate and true and have been freely and voluntarily made.
Dated this ____________ day of _________________________, 19 20____.
__________________________________
Attorney for the Defendant
Form 13.11. Application for Post Conviction Relief
In the District Court of ________County
State of Oklahoma
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___________________________________, |
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APPLICATION FOR POST-CONVICTION RELIEF
(Petitioner must use one application for each conviction.)
PART A
I, ________________________________________________, whose present address is ____________________________________, hereby apply for relief under the Post-Conviction Procedure Act, Section 1080 et seq. of Title 22.
The sentence from which I seek relief is as follows:
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. Are you now in custody serving this sentence? Yes( ) No( )
Where?
_____________________________________________________________________________
6. For what crime or crimes were you convicted?_______________________________________
____________________________________________________________________________
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. Name of lawyer who represented you in trial court:
___________________________________________________________________________
10. Was your lawyer hired by you or your family? Yes( ) No( )
Appointed by the court? Yes( ) No( )
11. Did you appeal the conviction? Yes( ) No( )
To what court or Courts? ______________________________________________________
12. Did a lawyer represent you for the appeal? Yes( ) No( )
Was it the same lawyer as in No. 9 above? Yes( ) No( )
If "no," what was this lawyer's name?_____________________________________________
Address?___________________________________________________________________
13. Was an opinion written by the appellate court? Yes( )No( )
If "yes," give citations if published: ______________________________________________
__________________________________________________________________________
If not published, give appellate case no.:__________________________________________
14. Did you seek any further review of or relief from your conviction at any other time in any court?
court? Yes( ) No( )
If "Yes," state when you did so, the nature of your claim andd the result (include citations to any reported opinions.)___________________________________________________________________________
_
_____________________________________________________________________________
PART B
(If you have more than one proposition for relief, attach a separate sheet for each proposition. Answer the questions below as to each additional proposition, labelled SECOND PROPOSITION, THIRD PROPOSITION.)
I believe that I have ________ (number of) propositions for relief from the conviction and sentence described in PART A. This is the first proposition. ____________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
1. Of what legal right or privilege do you believe you were deprived in your case? ____________________________________________________________________________________
2. In the facts of your case, what happened to deprive you of that legal right or privilege and who made the error of which you complain? _________________________________________________________
____________________________________________________________________________________
3. List by name and citation any case or cases that are very close factually and legally to yours as examples of the error you believe occurred in your case. ____________________________________________________________________________________
____________________________________________________________________________________
4. How do you think you could now prove the facts you have stated in answer to Question No. 2, above? Attach supporting documentation. ________________________________________________________
____________________________________________________________________________________
5. If you did not timely appeal the original conviction, set forth facts showing how you were denied a direct appeal through no fault of your own. ______________________________________________________
____________________________________________________________________________________
6. Is this a proposition that could have been raised on Direct Appeal? Yes( ) No( )
Explain:_____________________________________________________________________________
PART C
I understand that I have an absolute right to appeal to the Court of Criminal Appeals from the trial court's order entered in this case, but unless I do so within thirty (30) days after the entry of the trial judge's order, I will have waived my right to appeal as provided by Section 1087 of Title 22.
PART D
I have read the foregoing application and assignment(s) of error and hereby state under oath that there are no other grounds upon which I wish to attack the judgment and sentence under which I am presently convicted. I realize that I cannot later raise or assert any reason or ground known to me at this time or which could have been discovered by me by the exercise of reasonable diligence. I further realize that I am not entitled to file a second or subsequent application for post-conviction relief based upon facts within my knowledge or which I could discover with reasonable diligence at this time.
PART E (As Applicable)
I hereby apply to have counsel appointed to represent me. I believe I am entitled to relief. I do not possess any money or property except the following: (If none, state "None").
______________________________________________________________________________
______________________________________________________________________________
_________________ _________________________________
Date Signature
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STATE OF OKLAHOMA |
) |
__________________________, being first sworn under oath, states that he/she signed the above application and that the statements therein are true to the best of his/her knowledge and belief.
_________________________________
Signature
Subscribed and sworn to before me this ______ day of ________________________, 19 20____.
_________________________________
NOTARY PUBLIC
My Commission Expires: _______________
Form 13.13 Accelerated Docket Waiver
IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF OKLAHOMA
ACCELERATED DOCKET WAIVER
Consent to this form shall serve as notice to the Oklahoma Court of Criminal Appeals that the appellant understands the conditions of Accelerated Docket (Fast Track).
I understand my appeal will be limited to three (3) alleged propositions or issues of error. Review of other alleged propositions or issues of error from the same trial record will be foreclosed by the Oklahoma Court of Criminal Appeals.
Each party shall submit the required form (which serves as a brief). The alleged proposition[s] or issue[s] of error should be supported by pertinent statutory and case law and cited to the trial record. In addition, the parties shall present these propositions or issues in oral argument to the Oklahoma Court of Criminal Appeals. The argument shall address only the alleged propositions or issues of error stated in the form. Argument of related propositions or issues of error is barred.
The Oklahoma Court of Criminal Appeals shall review and render a decision only to those propositions or issues of error mentioned in the brief and presented at oral argument. As with regular appeals, future review to the Oklahoma Court of Criminal Appeals of any other alleged propositions of error associated with the trial court decision is waived.
The above conditions are understood and the consent below shall serve as notice to the Court of Criminal Appeals that review of any other alleged propositions of error related to this appeal is waived.
_____________________________________
Appellant
_____________________________________
Case No.
____________________________________
Date
Subscribed and sworn to before me this ______ day of __________________, 19 20_____.
____________________________________
Notary Public
My Commission Expires:
_________________________
( S E A L )
Form 13.14 Application for Accelerated Docket
IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF OKLAHOMA
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_______________________________ |
) |
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APPLICATION FOR ACCELERATED DOCKET (FAST TRACK)
A. TRIAL COURT HISTORY
COURT:_________________ CASE NO.___________________
COUNTY:________________ JUDGE:_____________________
SENTENCE ___________________________________________
B. POST-TRIAL MOTIONS
(Kind) (Date)
1. _________________________________ __________________________
2. _________________________________ __________________________
C. DISPOSITION OF POST-TRIAL MOTIONS
(Kind) (Date)
1. _________________________________ __________________________
2. _________________________________ __________________________
D. DISPOSITION IN TRIAL COURT
NATURE OF JUDGMENT OR ORDER APPELLANT SEEKS TO REVERSE:_____________________________________________________
Attach as Exhibit "A" a certified copy of the Journal Entry of Judgment and Sentence or the order used as basis of appeal.
E. SUMMARY OF CASE (FACTS ONLY, WITHOUT ARGUMENT)
Not to exceed two (2) 8-1/2" x 11" double spaced pages.
Attach as Exhibit "B".
F. ALLEGED PROPOSITIONS OR ISSUES OF ERROR WITH SUPPORTING AUTHORITY:
Allegations of error that are, in effect, general in nature
(conclusional) or "shotgun" (all encompassing) will not suffice;
e.g., "Decision is contra to law and evidence."
PROPOSITION 1:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Citation to exact location(s) in record or transcript where error occurred.
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
CITATION OF AUTHORITY SUPPORTING PROPOSITION 1: (Case authority shall be cited to specific page(s). Citations of authority shall include one parenthetic paragraph explaining why it is cited and how it is relevant to the proposition of error in the present case.)
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
PROPOSITION 2:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Citation to exact location(s) in record or transcript where error occurred.
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
CITATION OF AUTHORITY SUPPORTING PROPOSITION 2: (See directions set forth above.)
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
PROPOSITION 3:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Citation exact location(s) in record or transcript where error occurred.
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
CITATION OF AUTHORITY SUPPORTING PROPOSITION 3: (See directions set forth above.)
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
G. APPELLANT AGREES TO ACCELERATE PROCEDURES FOR THIS APPEAL UNDER COURT RULES. (Attach copy of "EXPEDITED REVIEW WAIVER" to this form as Exhibit "C".)
H. ADDRESS OF APPELLANT AT TIME OF FILING APPLICATION.
____________________________________________________________________
I. NAME OF COUNSEL
(with telephone number and address)
ATTORNEY FOR APPELLANT:
Name:_________________________________
OBA # _________________________________
Firm: __________________________________
Address: _______________________________
_______________________________________
Telephone:______________________________
DATE:_________________________, 19 20____
Verified by:
__________________________________________
(Signature of individual member of firm)
Firm: _____________________________________
__________________________________________
Address: __________________________________
__________________________________________
Telephone: ________________________________
AFFIDAVIT OF MAILING TO APPELLEE AND TRIAL COURT CLERK ON DAY OF FILING IN THE OKLAHOMA COURT OF CRIMINAL APPEALS
I hereby certify that a true and correct copy of the above and foregoing Application for Accelerated Docket was mailed this ______ day of ______________ 19 20____,
to ________________________________________________________________ by depositing it in the U.S. Mails, postage prepaid.
I further certify that a true and correct copy of the above and foregoing Application for Accelerated Docket was mailed to the office of the court clerk of ______________________ County on the _____ day of _______________________ 19 20____.
__________________________________________
Form 13.15 Response to Application for Accelerated Docket
IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF OKLAHOMA
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_______________________________ |
) |
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RESPONSE TO APPLICATION FOR ACCELERATED DOCKET (FAST TRACK)
A. IS APPELLEE AGREEABLE TO ACCELERATED DOCKET (FAST TRACK) PROCEDURES FOR THIS APPEAL UNDER COURT OF CRIMINAL APPEALS RULES?
_____ YES ____ NO
IF NOT AGREEABLE, WHY NOT?
______________________________________________________________________________
______________________________________________________________________________
B. APPELLEES' BRIEF STATEMENT AS TO CASE.
Attach as Exhibit "A" not more than two 8-1/2" x 11" double spaced page(s).
C. RESPONSE TO ALLEGED PROPOSITIONS AND ISSUES OF ERROR WITH SUPPORTING AUTHORITY:
Allegations of error that are, in effect, general in nature (conclusional) or "shotgun" (all encompassing) will not suffice; e.g., "Decision is contra to law and evidence."
RESPONSE TO PROPOSITION 1:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Citation to exact location(s) in record or transcript where error occurred.
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
CITATION OF AUTHORITY SUPPORTING RESPONSE: (Case authority shall be cited to specific page(s). Citations of authority shall include one parenthetic paragraph explaining why the case it is cited and how it is relevant to the proposition of error in the present case.)
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
RESPONSE TO PROPOSITION 2:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Citation to exact location(s) in record or transcript to support response.
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
CITATION OF AUTHORITY SUPPORTING RESPONSE: (See directions set forth above)
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
RESPONSE TO PROPOSITION 3:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Citation to exact location(s) in record or transcript to support response.
1.___________________________________________________________
2.___________________________________________________________
3.___________________________________________________________
CITATION OF AUTHORITY SUPPORTING RESPONSE: (See directions set forth above)
1.___________________________________________________________
2.___________________________________________________________
3. ___________________________________________________________
D. Date ________________________, 19 20_____. Verified by:
____________________________________
Signature of Attorney General or Assistant or party making appeal)
OBA #:______________________________
Address:_____________________________
____________________________________
Telephone:___________________________
AFFIDAVIT OF MAILING TO APPELLANT AND TRIAL COURT CLERK ON DAY FILED IN THE OKLAHOMA COURT OF CRIMINAL APPEALS
I hereby certify that a true and correct copy of the above and foregoing Response to Application for Accelerated Docket was mailed this ______ day of _______________________ 19 20____ to __________________________________________by depositing it in the U.S. Mails, postage prepaid.
I further certify that copy of the above and foregoing Response to Application for Accelerated Docket was mailed to the office of the court clerk of _____________________________ County on the ______ day of ____________________ 19 20____.
____________________________________