In re Revision of Portion of Rules of Court of Criminal Appeals, 1997 OK CR 74 (Okla. Crim. App. 12/10/1997)
| Decision Date | 10 December 1997 |
| Docket Number | Case Number CCAD-97-5. |
| Citation | 1997 OK CR 74 |
| Parties | IN RE: REVISION OF PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
¶ 1 Pursuant to the provisions of Section 1051(b) of Title 22 of the Oklahoma Statutes, we hereby revise, adopt, promulgate and re-publish portions of Rule 1.0, Rule 1.7, Rule 1.11, Rule 1.13, Rule 1.14, Rule 2.1, Rule 2.3, Rule 2.5, Rule 3.1, Rule 3.5, Rule 3.11, Rule 3.12, Rule 4.3, Rule 5.2, Rule 5.3, Rule 5.4, Rule 5.5, Rule 5.6, Rule 7.2, Rule 7.4, Rule 9.3, Rule 9.7, Rule 10.1, and Rule 10.5, together with Form 13.2, Form 13.4, and Form 13.11a of the Rules of the Court of Criminal Appeals, 22 O.S.Supp,1997, Ch. 18., App, as set out in the attachment to this order. This revision shall become effective on the date of this order and be implemented on January 1, 1998. In the rules section itself, additions are indicated by highlight; and deletions are indicated by strikethrough. (No such additions and deletions will appear in the final version of the Rules, to be published by West).
IT IS SO ORDERED.
D. Citation to the Rules of this Court shall be in the following format: Rule ___, Rules of the Court of Criminal Appeals, Title 22, Ch.18, App. (year).
RULE 1.7 IS AMENDED AS FOLLOWS:
All communications and inquiries regarding causes pending or other Court matters shall be addressed to the Clerk of the Court of Criminal Appeals, Room 1 B-2, State Capitol Building, 2300 N. Lincoln, Oklahoma City, Oklahoma 73105, or P. O. Box 53126, Oklahoma City, Oklahoma 73152. Dockets reflecting case filings and status can be viewed on the Court's web site at www.OCCA.STATE.OK.US.
RULE 1.11 IS AMENDED AS FOLLOWS:
Any person who asserts indigency and an inability to pay the filing fees required under these Rules must execute and file with the Clerk of this Court an "Affidavit in Forma Pauperis," verified before a notary public or other person authorized to administer oaths. Any false statement of a material fact therein may serve as the basis for prosecution for perjury. PROVIDED HOWEVER, a certified copy of Form 13.4 of these Rules determining indigency for the filing being submitted may be substituted. See Form 13.2.
RULE 1.13 IS AMENDED AS FOLLOWS:
C. Transcript of Evidence. The reported transcript of all proceedings designated on appeal, together with required copies or photos of all exhibits attached, prepared by a certified or licensed shorthand reporter or a reporter appointed in compliance with Section 106.3B of Title 20. But see Rule 2.2(B)(4).
RULE 1.14 IS AMENDED AS FOLLOWS:
D. Trial Counsel Responsibility
(1) The trial attorney in all cases shall be responsible or completing and filing the Notice of Intent to Appeal and Designation of Record required by Rule 1.14(C). If a defendant does not direct the trial attorney to initiate an appeal, the attorney schall prepare and file the form set out in Section XIII, Form 13.5, stating the defendant has been fully advised of his/her appeal rights and does not want to appeal the conviction.
(2) In cases in which the death penalty is imposed and the defendant is indigent for the purposes of appeal, trial counsel shall ensure the appropriate application is presented to the District Court for the appointment of counsel both for direct appeal and application for post-conviction relief. See Form 13.4.
(3) If a motion for a new trial on newly discovered evidence is filed on or after an appeal has been perfected in this court and prior to the expiration of one (1) year from the date that the Judgment and Sentence is pronounced, the motion shall be filed with the Clerk of this Court. See Section 953 of Title 22. The motion shall contail all the allegations required in the trial court and must be accompanied by affidavits and a supporting brief at the time of filing. This Court may dispose of the motion on the pleadings and the accompanying affidavits of the respective parties, by separate order or in the opinion on the appeal, may direct a response, or may remand for an evidentiary hearing in the trial court; PROVIDED HOWEVER, no motion may be filed in this Court after a decision has been rendered and the mandate is issued.
(4) If the appeal has been decided, the opinion has been rendered and the mandate has been issued by This Court, then in all other cases of newly discovered evidence, a petitioner must proceed under the provisions of the Post-conviction Proceudure Act, Sections 1080 to 189 of Title. 22.
B. Commencement of Appeal. An appeal is commenced by the trial counsel's filing with the trial court a written notice of intent to appeal and a designation of records as prescribed in Rule 1.14 days from the date the Notice is filed in the trial court. See rule 2.5 and Form 13.4. In addition to the above notice and designation of record, the attorney of record shall submit to the Clerk of this Court either the appropriate filing fee, pauper's affidavit or the trial court's determination of indigency for the appeal filed.
RULE 2.1 IS AMENDED AS FOLLOWS:
A. Motion for New Trial
(2) PROVIDED HOWEVER, if the motion for new trial is filed within ten (10) days of the date the Judgment and Sentence is imposed in open court, the filing of the Notice of Intent to Appeal and Designation of Record (Form 13.4) shall be stayed until the trial court rules on the pending motion. If a motion for new trial is filed within ten (10) days from the imposition of Judgment and Sentence in open court, the trial court shall hold a hearing on the motion and enter its order granting or denying the motion within thirty (30) days from the date the motion is filed. If the motion is denied, the defendant shall then file, within ten (10) days of the order denying the motion, the Notice of Intent to Appeal and Designation of Record pursuant to Rule 2.1(B). If the trial court fails to hold the hearing within thirty (30) days, the defendant may seek extraordinary relief with this Court. See Section 1054.1 of Title 22 and Steffey v. State, 916 P.2d 263 (Okl.Cr.1996).
E. Appeal out of Time
(1) If petitioner seeks an appeal out of time, the proper procedure is to file an application for Post-Conviction Relief in the District Court requesting an appeal out of time. Petitioner's right to appeal is dependent upon the ability to prove he/she was denied an appeal through no fault of his/her own. See Smith v. State, 611 P.2d 276 (Okl.Cr.1980). If the District Court recommends an appeal out of time, then Petitioner should file a petition for an appeal out of time in this Court with a certified copy of the District Court's order attached to it. This Court will consider the District Court's recommendation and issue an order granting or denying an appeal out of time. If the District Court denies the request, then Petitioner should attach a certified copy of the District Court's denial to the appeal to this Court. PROVIDED HOWEVER, if the District Court determines, pursuant to the application and provisions of Section 1085 of Title 22, that the petitioner should be resentenced, the appeal shall be perfected in the time limits prescribed by these rules commencing on the date the Judgment and Sentence is imposed in open court on resentencing.
(2) When an appeal out of time is granted by this Court in a direct appeal, a Notice of Intent to Appeal and Designation of Record in the form prescribed by Rule 1.14(C), and as set forth in Section XIII, Form 13.4, shall be filed with the clerk of the trial court and the Clerk of this Court within ten (10) days of the date of this Court's order allowing an appeal out of time. The procedure set forth in Sections II and III of this Court's Rules shall then be followed. The clerk of the District Court shall timely file a Notice of Completion or Non-Completion as set out in Rule 2.3 If the appeal record is already on file with the Court of Criminal Appeals, this should be noted in the Completion or Non-Completion. When an appeal out of time is granted in an appel under the Post-conviction Procedure Act, the required documents shall be filed within thirty (30) days of the order granting an appeal out of time in accordance with Rule 5.2(C).
(3) When an appeal out of time is granted by this Court for a certiorari appeal arising from a plea of guilty or nolo contendere, an Application to Withdraw the Plea must be filed in the trial court within ten (10) days from the date of this Court's order with a request for evidentiary hearing pursuant to Rule 4.2.
RULE 2.3 IS AMENDED AS FOLLOWS:
B. Duties of Trial Court Clerk on Completion of Record.
(4) Applicability. The requirements of this Section are applicable in all appeals except applications for extraordinary relief, Section X, wherein the Rules specifically require the petitioner to file the record with the Petition. In addition, the expedited procedure in ...
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