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
1998 OK CR 4
69 OBJ 274
Case Number: CCAD-97-5
Decided: 01/15/1998
IN RE: REVISION OF PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA
Oklahoma Court of Criminal Appeals

CORRECTED ORDER ADOPTING REVISION IN AND RE-PUBLISHING 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

¶1 On December 10, 1997, the Court entered its order adopting revision in and republishing portions of specified rules and forms of the Rules of the Oklahoma Court of Criminal Appeals. Subsequent to the publication of this order, it was determined certain typographical and formatting errors existed as it related to the amendments to the rules. To correct these errors, the Court finds it should republish the order and the amendments to the rules to ensure the revisions are accurately set out. The Court further finds the amendments to Form 13.2 and 13.4 and the adoption of a new Form 13.11a were correct in the original order and the forms remain as previously adopted and are not republished at this time.

¶2 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 of the Rules of the Oklahoma 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.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT

/s/CHARLES S. CHAPEL, Presiding Judge

/s/RETA M. STRUBHAR, Vice Presiding Judge

/s/GARY L. LUMPKIN, Judge

/s/JAMES F. LANE, Judge

/s/CHARLES A. JOHNSON, Judge

 

ATTEST:

/s/Jim Patterson
Clerk

 

 RULE 1.0(D) IS AMENDED AS FOLLOWS:

D.

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(C) IS AMENDED AS FOLLOWS:

C. Transcript of Evidence.

RULE 1.14(D) IS AMENDED AS FOLLOWS:

D. Trial Counsel Responsibility

(

(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 2.1(A)(2) IS ADOPTED 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).

PREVIOUS RULE 2.1(A)(2)

PREVIOUS RULE 2.1(A)(3)

(4)

RULE 2.1(B) IS AMENDED AS FOLLOWS:

B. Commencement of Appeal.

(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 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.

RULE 2.1(E) IS AMENDED AS FOLLOWS:

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)

(3)

RULE 2.3(B)(4) 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.

RULE 2.5(A) IS AMENDED AS FOLLOWS:

A.

(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.

(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.

RULE 3.1(A)(3) IS AMENDED AS FOLLOWS:

A. Petition in Error.

(3) The Judgment and Sentence imposed and the date of pronouncement

RULE 3.5(A)(7) IS AMENDED AS FOLLOWS:

A. Brief of the Appellant.

(7) A business address and telephone number following the signature of the attorney of record or party

 

RULE 3.5(C) IS AMENDED AS FOLLOWS:

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. The citation of Oklahoma criminal cases shall conform to the following: ________ v. ________, ___ P.2d ___ (Okl.Cr.Year).

(2) Citation to opinions of the Oklahoma Court of Criminal Appeals shall include citations to Pacific and Pacific 2nd 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

(ii)

(iii

(iv) Hunter v. State

(v) Hunter v. State

(b) Oklahoma Court of Criminal Appeals Opinions in which mandate has issued after January 1, 1954, shall include citations to Pacific and Pacific 2nd 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

(ii) Burns v. State

(iii) Burns v. State

(iv) Burns v. State

(v) Burns v. State

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

(ii) Robinson v. State

(iii) Robinson v. State

(iv) Robinson v. State

(v) Robinson v. State

(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.

(2)

(3)(

(4)(

RULE 3.11(A) IS AMENDED AS FOLLOWS:

A.

RULE 3.12(E) IS ADOPTED AS FOLLOWS:

Rule 3.12. Monitoring Appeal Time; Motion to Dismiss; Notification;

E.

RULE 4.3(A) IS AMENDED AS FOLLOWS:

A.

The above items shall be filed in accordance with Rules 2.2, 2.3, and 2.4 .

RULE 5.2(A) IS AMENDED AS FOLLOWS:

A. Final Judgment on Post-Conviction Application.

RULE 5.2(B) IS AMENDED AS FOLLOWS:

B. Stay of Execution of Judgment Pending Appeal.

RULE 5.2(C) IS AMENDED AS FOLLOWS

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 and Section IX, must file a

(2) A

(3

(2)

(5)

(3)

(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

(c) The record of the evidentiary hearing conducted, if held; and,

(d) Supporting evidence presented to the District Court

(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.

(4)

(5)

(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__, 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 IS AMENDED AS FOLLOWS:

Rule 5.3. Duties of Court Clerks

A.

B.

2.

RULE 5.4 IS ADOPTED AS FOLLOWS:

Rule 5.4. Duties of the Judge of the District Court

A.

B.

PREVIOUS RULE 5.4 IS RENUMBERED AS FOLLOWS:

Rule 5. 4

Once this Court has rendered its decision on a post-conviction appeal, that decision shall constitute a final order and the appellant's state remedies will be deemed exhausted on all issues raised in the petition in error, brief and any prior appeals. A petition for rehearing is not allowed and these issues may not be raised in any subsequent proceeding in a court of this State. The Clerk of this Court shall return to the movant any petitions for rehearing tendered for filing. See Section 1086 of Title 22.

PREVIOUS RULE 5.5 IS RENUMBERED AS FOLLOWS:

Rule 5.56 Form for Application for Post-Conviction Relief

Any convicted person who seeks post-conviction relief under this Act may apply to the trial court on the form provided in Section XIII, Form 13.11. See Section IX for capital cases.

RULE 7.2 IS AMENDED AS FOLLOWS:

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, this 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 proceedings.

RULE 7.4 IS AMENDED AS FOLLOWS:

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 transmittal within 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, unless the appeal is relating to an issue of certification or reverse certification in which instance the scheduling order shall control. PROVIDED HOWEVER, the 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 9.3(D) IS AMENDED AS FOLLOWS:

D. Supplemental Brief.

RULE 9.7(A) IS AMENDED AS FOLLOWS:

A. Application.

(1) Post-conviction applications shall be in accordance with Form 13.11

(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.

(3) The verified application shall be in substantial compliance with Form 13.11

(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.

 

RULE 9.7(D)(1)(a) IS AMENDED AS FOLLOWS:

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 Rule 1.13(F), and any affidavits and

RULE 10.1(B) IS AMENDED AS FOLLOWS:

B.

RULE 10.1(C) IS AMENDED AS FOLLOWS:

C.

(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.

RULE 10.5(3) IS AMENDED AS FOLLOWS: