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In re Revision of Portion of Rules of Court of Criminal Appeals

Court of Criminal Appeals of Oklahoma

February 5, 2018

IN RE REVISION OF PORTION OF RULES OF COURT OF CRIMINAL APPEALS

          ORDER REVISING AND REPUBLISHING PORTION OF THE RULES OF THE COURT OF CRIMINAL APPEALS

         ¶1 We find that revision of Rule 5.2 and Rule 5.3(B) of the Rules for the Oklahoma Court of Criminal Appeals is necessary for the timely preparation of the record on appeal in post-conviction appeals. Pursuant to the provisions of Section 1051(b) of Title 22 of the Oklahoma Statutes, we hereby revise, adopt, promulgate and republish portions of the Rules of the Oklahoma Court of Criminal Appeals, 22 O.S., Ch. 18, App. (2018), as set forth as follows:

         SECTION V. PROCEDURES FOR APPEALING FINAL JUDGMENT UNDER POST-CONVICTION PROCEDURE ACT

         Rule 5.2 Appeal from Final Judgment

         A. Final Judgment on Post-Conviction Application.

         The appeal to this Court under the Post-Conviction Procedure Act constitutes an appeal from the issues raised, the record, and findings of fact and conclusions of law made in the District Court in non-capital cases. See Yingst v. State, 1971 OK CR 35, ¶¶ 6-7, 480 P.2d 276, 277 (Okl.Cr.1971) . For appeal out of time see Rule 2.1(E).

         B. Stay of Execution of Judgment Pending Appeal. The District Court may stay the execution of its judgment upon the filing of a verified motion to stay execution of the judgment pending appeal within ten (10) days from the date of the entry of the judgment. If the motion is granted, the party granted the stay shall file a certified copy of the petition in error in the District Court within five (5) days after the filing of the petition in error in this Court to ensure the District Court is notified of the perfecting of the appeal. See Section 1087 of Title 22. For capital cases, see Section IX of these Rules and Section 1089 of Title 22.

         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 MUST file a Notice of Post-Conviction Appeal with the Clerk of the District Court within ten twenty (10 20) days from the date the order is filed in the District Court. See Rule 9.7 for post-conviction procedures in capital cases. The filing of the Notice of Post-Conviction Appeal in the District Court is jurisdictional and failure to timely file constitutes waiver of the right to appeal.

         (2) A petition in error and supporting brief, WITH A CERTIFIED COPY OF THE ORDER ATTACHED must be filed with the Clerk of this Court. The petition in error shall state the date and in what District Court the Notice of Post-Conviction Appeal was filed. If the post conviction appeal arises from a misdemeanor or regular felony conviction, the required documents must be filed within thirty sixty (3 6 0) days from the date the final order of the District Court is filed with the Clerk of the District Court. If post-conviction application is from a capital conviction, the documents must be filed within the time set in Section 1089 of Title 22 and Rule 9.7.

         (3) The brief shall not exceed thirty (30) typewritten 8-1/2 by 11-inch pages in length. See Rule 9.7 (A)(4) for page limits in capital cases.

         (4) This Court may direct the other party to file an answer brief, if necessary. However, the respondent is not required to file an answer brief unless directed by the Court.

         (5) Failure to file a petition in error, with a brief, within the time provided, is jurisdictional and shall constitute a waiver of right to appeal and a procedural bar for this Court to consider the appeal.

         (6) The record on appeal of a denial of post-conviction relief shall be transmitted by the Clerk of the District Court in accordance with the procedure set forth in Rule 2.3(B), but within the time requirements set forth in Rule 5.3. The record to be compiled by the Clerk of the District Court and transmitted to the Clerk of this Court is limited to the following:

(a) The Application for Post-Conviction Relief presented to the District Court and response, ...

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