OCCAOnline Rules of the Court of Criminal Appeals

(Updated 7/22/2005 in accordance with 2005 OK CR 11)
(Updated 1/31/2008 in accordance with 2008 OK CR 5)


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) General Procedures for Obtaining an Out-of-Time Appeal. If petitioner seeks an appeal out of time, the proper procedure is to file an Application for Post-Conviction Relief 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 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 Blades v. State, 2005 OK CR 1, 107 P.3d 607; see also Smith v. State, 1980 OK CR 43, 611 P.2d 276. If the trial court recommends an appeal out of time, then petitioner shall file a petition for an appeal out of time in this Court within thirty (30) days from the date the trial court's ruling was filed with the trial court clerk. 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 trial court's recommendation and issue an order granting or denying an appeal out of time. If the trial court denies the request, then Petitioner should attach a certified copy of the 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.

(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 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 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 an evidentiary hearing pursuant to Rule 4.2; provided however, if prior to the request for the out of time appeal, the defendant timely filed an application to withdraw the plea and received a decision thereon, then the defendant will file a Notice of Intent to Appeal and Designation of Record within ten (10) days from the date of this Court's order granting an appeal out of time.


<<Prior Section    Index    Next Section>>

Return to OCCA Online

 

'