IN RE: AMENDMENT OF THE RULES OF THE COURT OF CRIMINAL APPEALS

IN RE: AMENDMENT OF THE RULES OF THE COURT OF CRIMINAL APPEALS
2009 OK CR 14
Case Number: CCAD-2009-2
Decided: 10/12/2009
IN RE: AMENDMENT OF THE RULES OF THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

ORDER ADOPTING AMENDMENT TO RULE 1.11 AND 
SECTION XIII, FORM 13.2

¶1  Pursuant to the provisions of Title 22 O.S.2001 § 1051(b), we hereby revise, adopt, promulgate and republish portions of Rule 1.11., APPLICATION IN FORMA PAUPERIS, Rule 1.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009) and Form 13.2 AFFIDAVIT IN FORMA PAUPERIS, Form 13.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2009). 

¶2  The rule is revised as follows (strikethrough denotes deleted words, bold denotes added words):

Rule 1.11.  Application in 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 in Forma Pauperis," verified before a notary public or other person authorized to administer oaths, or as specified in Rule 1.13(L). 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 in Forma Pauperis" is properly filed. This Rule shall not apply to filings of writs of habeas corpus. See 12 O.S.2001 § 1355.

¶3  The form is revised as follows (strikethrough denotes deleted words, bold denotes added words):

Form 13.2.  Affidavit in Forma Pauperis in Forma Pauperis

The Affidavit in Forma Pauperis in Forma Pauperis must be in the following form:

AFFIDAVIT IN FORMA PAUPERIS

STATE OF OKLAHOMA      )

                                         )

COUNTY OF ___________  )

I, ____________________, 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.  I state under penalty of perjury under the laws of Oklahoma that the foregoing is true and correct. 

Signed this _____ day of ________________, 20___ at___________________________.
                                                                                          (Print City, County, & State)

_________________________________________
                             (Signature of Affiant)

__________________________________________
                              (Print Name)

Subscribed and sworn to before me this ____ day of __________, 20____.

_____________________________________________________________

                            (Notary Public)

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, ____________, 20____, and the attached statement sets out the deposits and withdrawals for the last six months.

By ______________________________

    (Department of Corrections Official)

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

¶5  IT IS SO ORDERED.

¶6  WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 12th day of October, 2009.

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

                                                /s/ Arlene Johnson
                                                ARLENE JOHNSON, Vice Presiding Judge

                                                /s/ Gary L. Lumpkin, Concur in Part, Dissent in Part
                                                GARY L. LUMPKIN, Judge

                                                /s/ Charles S. Chapel, Concur in Result
                                                CHARLES S. CHAPEL, Judge

                                                /s/ David B. Lewis
                                                DAVID B. LEWIS, Judge

ATTEST:

/s/ Michael Richie
Clerk

LUMPKIN, JUDGE:  CONCUR IN PART/DISSENT IN PART

¶1  I concur in the fact we have previously set out in Rules 1.11 and 1.13(L), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App(2009), that verification of a document filed with this Court can be made either by verification before a Notary Public or by compliance with the provisions of 12 O.S.Supp.2004, § 426.  While Form 13.2 only provided an example of the format to be utilized when verification is made before a Notary Public, Rule 1.13(L) provided the example of the statutory language to be used when verification is in accordance with Section 426.

¶2  The problem with the Court's "revision" of Form 13.2 is it does not recognize the two alternative methods available for verification of documents filed in this Court.  The correct action, and one that would be in compliance with Rules 1.11 and 1.13(L), would be to republish Form 13.2 with both alternatives set out.  All the Court has done with this revision is to exchange one of the alternatives for the other alternative and give the impression there is only one way to comply with the verification requirements.  In other words, the revision has accomplished nothing, except create more confusion rather than resolving it.