IN RE: REVISION OF PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

IN RE: REVISION OF PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA
2005 OK CR 11
118 P.3d 213
Case Number: CCAD-2005-6
Decided: 07/22/2005
IN RE: REVISION OF PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

ORDER ADOPTING REVISIONS TO RULE 2.1(E)

¶1  Pursuant to the provisions of Section of 1051(b) of Title 22 of the Oklahoma Statutes, we hereby revise, adopt, promulgate, and republish subsection (E) of Rule 2.1, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), as follows (underlined text denotes additions and strikethrough denotes deletions):

 E. Appeal out of Time

(1) General Procedures for Obtaining an Out-of-Time Appeal.  If petitioner seeks an appeal out of time, the proper procedure is to file an aApplication for Post-Conviction Relief in the District Court requesting an appeal out of time.  The Application must be filed in the trial court where the judgment and sentence on conviction or the final order denying relief was imposed. A Ppetitioner'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 Blades v. State, 2005 OK CR 1, 107 P.3d 607; see also Smith v. State, 1980 OK CR 43, 611 P.2d 276 (Okl.Cr.1980).  If the District Court trial court recommends an appeal out of time, then Ppetitioner shall file a petition for an appeal out of time in this Court within thirty (30) days of the District Court's trial court's ruling with a certified copy of the District Court's order attached to it.  The petitioner must attach to the petition a copy of the post-conviction application for the out-of-time appeal that was filed in the trial court and a certified copy of the trial court's ruling upon that application. This Court will consider the District Court's trial court's recommendation and issue an order granting or denying an appeal out of time.  If the District Court trial court denies the request, then Petitioner should attach a certified copy of the District Court's denial order denying relief to the petition for appeal to this Court and shall otherwise comply with those procedures for perfecting a post-conviction appeal.  See Section V of this Court's Rules.  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) Out-of-Time Direct Appeals.  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 trial 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) Out-of-Time Post-Conviction Appeals.  When this Court grants an appeal out of time is granted in an appeal from a final judgment entered under the Post-Conviction Procedure Act, the required documents required to be filed in this Court for perfecting that post-conviction appeal shall be filed by the petitioner within thirty (30) days of the order granting an appeal out of time in accordance with Rule 5.2(C).

(4) Out of Time Certiorari Appeals.  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 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 hasd not already been held.

¶2  These revisions shall become effective on the date of this order.

¶3  IT IS SO ORDERED.

¶4  WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 22nd day of July, 2005.

/s/    Charles S. Chapel
 CHARLES S. CHAPEL, Presiding Judge

/s/    Gary L. Lumpkin
GARY L. LUMPKIN, Vice Presiding Judge

/s/    Charles A. Johnson
CHARLES A. JOHNSON, Judge

/s/    Arlene Johnson
ARLENE JOHNSON, Judge

ATTEST:

/s/Michael S. Richie
Clerk