ORDER DISMISSING POST-CONVICTION APPEAL
On March 21, 2017, this Court issued an Order directing
Petitioner to show cause why the above-styled post-conviction
appeal should not be dismissed for his failure to file a
Notice of Post-Conviction Appeal and the resulting lack of an
adequate appeal record. On April 3, 2017, Petitioner, pro
se, filed a response asserting compliance with Rule
5.2(C), Rules of the Court of Criminal Appeals,
Title 22, Ch. 18, App. (2016). As Petitioner has not shown
that he filed the requisite Notice of Post-Conviction Appeal,
this Court FINDS that this appeal should be dismissed.
This Court's rules require the filing of a Notice of
Post-Conviction Appeal. Rule 5.2(C)(1), Rules of the
Court of Criminal Appeals, Title 22, Ch. 18, App.
(2016), provides that the party desiring to appeal from the
final order disposing of a post-conviction proceeding
"MUST file a Notice of Post-Conviction Appeal with the
Clerk of the District Court within ten (10) days from the
date the order is filed in the District Court."
(emphasis in original). Consistent with the other
circumstances requiring the filing of a Notice of Intent to
Appeal, we find that the filing of a Notice of
Post-Conviction Appeal is jurisdictional. See Rule
2.1(B) (direct appeal) and Rule 4.2(D) (certiorari appeal),
Rules of the Court of Criminal Appeals, Title 22,
Ch. 18, App. (2016); Blonner v. State, 2006 OK CR 1,
¶ 15, 127 P.3d 1135, 1142-43 (pretrial determination of
mental retardation); Burnham v. State, 2002 OK CR 6,
¶ 9, 43 P.3d 387, 390 (revocation appeal); State v.
Young, 1999 OK CR 14, ¶ 14, 989 P.2d 949, 952
As exemplified by the circumstances of the present case, this
Court has experienced difficulties in the timely receipt of
the record on appeal in post-conviction appeals. We note that
the filing of the Notice of Post-Conviction Appeal is
essential because it triggers the District Court Clerk's
duty to assemble the record on appeal, transmit the Notice of
Completion of the record, and timely file the record with the
Clerk of this Court. Rule 5.3(B), Rules of the Court of
Criminal Appeals, Title 22, Ch. 18, App. (2016). Without
a timely filed Notice of Post-Conviction Appeal, the Clerk of
the District Court cannot meet the time requirements for
filing the record on appeal. Therefore a party desiring to
appeal from the final order disposing of a post-conviction
case MUST file a Notice of Post-Conviction Appeal with the
Clerk of the District Court in conformity with Rule 5.2.
Turning to the present case, Petitioner has attached to his
Response, an uncertified copy of a Notice which he filed to
initiate one of his previous appeals to this Court. This
pleading cannot save the current appeal.
The materials attached to the Petition in Error reveal that
on July 12, 2012, Petitioner entered a plea of guilty to
Driving a Motor Vehicle While Under the Influence of Alcohol,
Second and Subsequent Offense (47 O.S.Supp.2006, §
11-902) in District Court of Caddo County Case No.
CF-2009-102. The District Court sentenced Petitioner to
imprisonment for ten (10) years, all suspended. On March, 24,
2016, the District Court revoked Petitioner's suspended
sentence in full. Petitioner did not appeal the District
Court's revocation order.
The limited record before the Court reveals that Petitioner
filed his original Application for Post-Conviction Relief on
May 11, 2016. The District Court of Caddo County entered the
Order Denying Post Conviction Relief on June 29, 2016.
Because Petitioner did not receive notice of this ruling, he
did not timely appeal and we dismissed his initial
post-conviction appeal. Pershall v. State,
PC-2016-866, unpub. dispo. (Okl. Cr. Oct. 10, 2016). On
October 20, 2016, Petitioner filed his second Application for
Post-Conviction Relief in the District Court seeking an
appeal out of time of the District Court's denial of his
original application. On October 26, 2016, the District Court
recommended an appeal out of time in its Order Granting Post
Conviction Relief. Petitioner timely appealed the District
Court's order and filed his Notice of Post-Conviction
Appeal in the District Court on November 7, 2016.
Petitioner filed his Petition in Error with this Court on
that same date but failed to file a copy of the Notice which
he had filed in the District Court. On November 16, 2016,
Petitioner tendered his Motion to Supplement Record on Appeal
seeking to supplement the record with a copy of the Notice
which he had filed in the District Court on November 7, 2016.
We granted Petitioner's motion to supplement. On November
30, 2016, we granted Petitioner a Post-Conviction Appeal out
of Time. Pershall v. State, PC-2016-1018, unpub.
dispo. (Okl. Cr. Nov. 30, 2016). We directed Petitioner to
lodge his appeal in accordance with Rules 2.1(E)(3) and
5.2(C), Rules of the Court of Criminal Appeals,
Title 22, Ch. 18, App. (2016), ¶8 It is apparent from
the record that the Notice of Post-Conviction Appeal attached
to Petitioner's Response is the document which he used to
initiate his appeal in Case Number PC-2016-1018. The Notice
remains attached to the Motion to Supplement which the Clerk
of this Court tendered for filing on November 16, 2016 and,
then, filed of record on November 30, 2016. The Motion bears
both the tendered and the filed stamps which the Clerk
impressed upon the document. The Motion recites the Case
Number as "PC-2016-1018."
The Notice, itself, states that it seeks to appeal the
District Court's "Order Granting Post Conviction
Relief Allowing Appeal Out of Time" dated October 26,
2016. It does not seek to appeal the District Court's
denial of the original Application for Post-Conviction
Relief. The motion indicates that Petitioner signed it on the
same date on which Petitioner gave notice of his appeal in
Case Number PC-2016-1018. It is signed by the same Notary on
the same date as in his former appeal.
Petitioner's claim that he filed the attached Notice
seeking to initiate the appeal out of time which this Court
granted him stretches the imagination and is contrary to the
record. As noted in this Court's Order to show cause,
Petitioner must have filed a Notice of Post-Conviction Appeal
after this Court's Order of November 30, 2016, granting
him an out of time post-conviction appeal. As Petitioner
failed to file this Notice and has not shown cause why this
appeal should not be dismissed, we FIND that this Appeal
should be dismissed.
IT IS SO ORDERED.
WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 31st day of
L. LUMPKIN, Presiding Judge, DAVID B. LEWIS, Vice Presiding
Judge (CIR), ARLENE JOHNSON, Judge NOT PARTICIPATING, CLANCY