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DIRECT APPEALS

 

Authored by:

Kevin D. Adams

 

The information provided in this pamphlet is designed to provide the reader with basic legal information. This information is not intended to be legal advice and you are encouraged to consult an attorney regarding your specific legal needs.

 

DIRECT APPEALS
OVERVIEW

 

Those individuals convicted of a crime at a jury trial or a bench trial are entitled to appeal the conviction to the Oklahoma Court of Criminal Appeals. (COCA) The purpose of an appeal is not to challenge the jury’s factual determination but to ensure that the rights of the accused were not violated during the trial. In most cases the appellate attorney will raise issues that challenge legal rulings made by the trial judge. However, if appropriate the appellate attorney can raise propositions of error that do not necessarily involve rulings by the trial court such as newly discovered evidence, prosecutorial misconduct and ineffective assistance of trial counsel.

 

 

Most cases are affirmed on appeal. Successful appeals are typically those appeals that raise serious errors of law that significantly affect the rights of the accused. Errors committed in the trial which do not result in miscarriages of justice or constitute in substantial violations of constitutional of statutory rights are known as Harmless Error. When considering issues to raise on appeal one should keep the Harmless Error Doctrine in mind.

 

When the State seeks to convict one of its citizens of a crime and deprive that citizen of his or her life or liberty, the State should, at the very least, be required to follow the law. Quite appropriately, this Court applies the " harmless error" doctrine to errors which neither result in a miscarriage of justice nor constitute a substantial violation of a constitutional or statutory right. Thus, our law does not require perfection by the State in prosecuting a citizen. We can, and do, frequently deem harmless those errors which do not substantially violate an individual's rights. Flores v. State, 1995 OK CR 31.

 

THE PROCESS

 

  • Within 10 days of the formal sentencing a Notice of Intent to Appeal, Designation of the Record and Advisory Propositions of Error must be filed with the trial court. Before the Designation of Record is filed arraignments must be made with the Court Reporter to cover the costs of the transcripts. If the individual is without the funds to pay for the transcripts they are entitled to have the cost of the transcripts paid by the state. Since Appeals are generally restricted to issues that have been raised in the record, the designation of the appropriate portions of the record are an important step in the process.

 

  • Within 90 days of the Formal Sentencing a Petition of Error must be filed with the Court of Criminal Appeals. This is an important step and if not done within 90 days of the sentencing the appeal will be dismissed for lack of Jurisdiction.

 

 

  • Once the record for the appeal is completed the Court Clerk of the county of conviction will send a notice of completion to the Court of Criminal Appeals. Once the notice of completion is received by the Court of Criminal Appeals the court will send a notice to transmit the record.

 

  • The appellant’s brief is due 60 days after the Notice to Transmit the Record is filed. (the Appellant is the defendant). If the attorney for the appellant needs more time they can request additional time from the Court. Typically the Court will only grant two 30 day extensions, for a total of 60 days of additional time.

 

 

  • Within in 60 days of the filing of the appellant’s brief the state must respond by filing the Answer brief with the Court. Typically the Court will grant two 30 day extensions to the state, for a total of 60 days of additional time.
  • After the Answer brief is received the Appellant (The Defendant) may file a reply brief that responds to the issues raised in the Answer Brief. The Appellant may not raise new issues in the reply brief, in the brief the Appellant is only allowed to respond to the issues raised in the Answer Brief filed by the state.

 

  • After reviewing the record and the briefs the Court will issue a decision on the case. It could take the Court up to 6 months to issue that opinion. The entire process from the sentencing date to the decision by the Court of criminal Appeals could take anywhere from 10 to 18 months depending on how many extensions are issued in the case.

 

APPEALS AT
STATE EXPENSE

 

Individuals without the funds to hire an attorney to represent them on appeal are entitled to be represented on appeal at state expense. In order to be represented on appeal at state expense a defendant must file out a Pauper's Affidavit and based upon that affidavit the Trial Court will make a determination that the individual is “indigent” or without the funds to hire an attorney to represent them on appeal.

 

Once the Court has made a determination of indigency the Court will appoint that individual an attorney at state expense or and order the transcripts prepared at state expense. Just because a defendant had a private attorney representing them at trial does not mean that they are not entitled to be represented on appeal at state expense. The determination must be made on a case by case basis based on the Pauper’s Affidavit.

 

FACTORS TO CONSIDER
IN HIRING AN ATTORNEY

 

If you or your family have access to the internet, the Oklahoma Bar Association has a web page that may assist you in making this decision. To go directly to that page go to:

 

 

www.okbar.org/public/brochures/lawyerbroc.htm

 

 

FINDING A LAWYER

The Oklahoma Bar Association has a service that is free to the public and may assist a individuals in finding an attorney. This service allows for an individual to find a lawyer who practices in a specific area of law in a particular county in Oklahoma. That service is located on the internet at:

 

www.OklahomaFindALawyer.com.

While the bar association’s web site may assist you in finding a lawyer the service will not give you any indication of that lawyers ethics, ability or reputation. However, Martindale–Hubbell is a legal directory that has been in existence for over a century. Martindale-Hubbell offers a peer review rating service that is free to the public. Not all of the lawyers listed on Martindale-Hubbell are rated, but those who are have been rated have been given a rating through the use of confidential surveys sent to lawyers in the community that the lawyer practices in. It is a great way for those who do not know who to hire to receive a non-biased opinion on a lawyer they are considering hiring.

 

www.Martindale.com

 

 

Copyright ©2006 Kevin D. Adams

Disclaimer: Kevin D. Adams only provides legal advice after having entered into an attorney client relationship, which this website specifically does not create. Only after having entered into a representation agreement with Kevin D. Adams will an attorney-client relationship have been created. It is imperative that any action taken by you should be done on advice of legal counsel.* Because every case is different, the descriptions of outcomes and cases previously handled are not meant to be a guarantee of success.

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