Overview of Felony Criminal Process
by Tulsa Criminal Lawyer Kevin Adams
Oklahoma Felony Arrest on Probable Cause/Arrest on Warrant
Everyone charged with a felony offense who is going through the system was arrested. Some are arrested by law enforcement on probable cause and others are arrested after a warrant is issued for them by a judge. Those who are arrested by law enforcement on probable cause will be booked into jail and a bond will be set. (Either by a Judge or from the bond Schedule) Those who are arrested on an arrest warrant will already have a bond set when they are arrested.
Just because someone is arrested by the police, does not necessarily mean that they will be formally charged by the County District Attorney’s office.
When someone is arrested on probable cause and booked into jail the Court Clerk’s Office Assigns them a “no file” number so that the case can be tracked. The number will look something like NF-2006-2745. This case file number cannot be pulled up on OSCN. However, the Court clerk on the 2 nd floor or any of the judge’s clerk’s can pull the file up on their systems.
Even though to you and your client it is all one case, to the court clerk’s office it is 2 cases. “NF” before formal charges are filed and “CF” after formal charges are filed. The significance of the “No File” numbers is that events that occurred prior to the filing of formal charges (such as court dates, motions and court minutes) will not appear on the docket sheet of the CF case when it is filed. These events are not transferred to the CF case from the NF case. If you are looking for a court minute or a motion that occurred prior to the filing of formal charges go to the 2 nd floor and have the court clerk pull it for you.
If a defendant bonds out of jail before formal charges are filed the bond will be transferred to the CF case number. Listed below is an example of a court minute transferring the bond from a “NF” case to a “CF” case;
FAJARDO, EDUARDO RIVERA
May 12 2006 12:47:35:060PM
A BOND FROM CASE # NF-2006-3107 DATED 05/09/2006 HAS BEEN TRANSFERRED TO THIS CASE. THE INFORMATION ON THIS BOND IS AS FOLLOWS:
PROFESSIONAL BOND FOR FAJARDO, EDUARDO RIVERA POSTED BY DAVIS, DOYLE (PROFESSIONAL:RINGGOLD, KAREN), COUNT NUMBER 1, IN THE AMOUNT OF $5,000.00, POSTED 05/09/2006($ 10.00)
Bond Reduction Hearing
Everyone arrested has the right to ask the court for a bond reduction. They are at least entitled to the hearing. They are not automatically entitled to a bond reduction. The Right to Bail in Oklahoma is controlled by Oklahoma Constitution Article II § 8 Right to Bail—Exceptions. (Page 1 Oklahoma Criminal Law—Statutes & Rules Annotated by Charles Cantrell published by Imprimatur Press. Imprimatur Press phone number 1-800-811-6725) The leading case concerning the right to bail and Article II § 8 of the Oklahoma Constitution is Brill v. Gurich, 965 P2d 404 (Okla. Crim. App. 1998)
For a sample motion for a bond reduction see Attachment #1. When filing for a bond reduction you need to draft the motion for a bond reduction (See Sample Attachment #1), draft a hearing order (See Attachment #2) and file the Motion for a bond reduction on the 2 nd floor of the Tulsa County Courthouse. Take the filed motion to the 3 rd floor at the Preliminary Hearing Clerk’s desk and get one of the preliminary hearing judges to set the hearing for the bond reduction. Usually the judge who will be hearing the motion will sign the hearing order.
After the hearing order is signed, take the order and file it on the 2 nd floor. Then deliver a copy of the order and the motion to the district attorney’s office on the 9 th floor. Currently the standard policy in Tulsa County is that Bond Reduction Motions filed before noon will be heard the next court day at 3:00 pm. And Bond Reduction Motions filed after noon will be heard at 3:00 pm 2 court days after it is filed. (For example a bond reduction motion filed Wednesday afternoon would be set for hearing Friday at 3:00 pm.)
If your client has been arrested but no formal charges have been filed yet, then include the “NF” number as the case number; you will have to get the “NF” number from the court clerks office.
Filing of the Criminal Information
Formal charges are filed by the district attorney by the filing of an information. (See attachment #3 for an Example of an information) Once the case is filed it will be assigned a “CF” number. (Misdemeanors will have a “CM” number.)
Typically the statutory citation that the defendant is charged under is listed under each count. For example on the information included as attachment 3 on the 1 st page it states;
In the information included with attachment # 3 the individual is charged underOklahoma Statute Title 21 O.S. § 1283.
If your client is charged after a former felony conviction that will be alleged in the information as well. This is commonly referred to as the “2 nd Page”. However, the “2 nd Page” is usually the 3 rd or 4 th page of the information. In attachment #3 the sample information the “2 nd Page” begins on the 4 th page of the information. The 2 nd page is important because of the increased punishments prescribed for Second and Subsequent Convictions. See Title 21 O.S. §51.1 and Title 22 § 991a-20.
Section 303 - Subscription, Endorsement, and Verification of Information - Excusing Endorsement
A. The district attorney shall subscribe the district attorney’s name to informations filed in the district court and endorse thereon the names and last-known addresses of all the witnesses known to the district attorney at the time of filing the same, if intended to be called by the district attorney at a preliminary examination or at trial. Thereafter, the district attorney shall also endorse thereon the names and last-known addresses of such other witnesses as may afterwards become known to the district attorney, if they are intended to be called as witnesses at a preliminary examination or at trial, at such time as the court may by rule prescribe.
If the state wishes to endorse a witness after the filing of the information the state will file a motion to endorse additional witnesses and get an order from the judge allowing the endorsement. If the state attempts to call a witness at trial or during the preliminary hearing that it has not endorsed there is a basis for you to object. (Rebuttal witnesses would be excluded from this requirement)
Initial appearances in Tulsa County are held in room 173. Currently they are being held at 9:00 am. However, check the time on your specific case because it has been known to change. When you appear at an initial appearance find your client on the docket sheet. You need to be able to tell the judge where your client is on the docket sheet. The docket sheets are typically lying on the tables of room 173. [There are 2 different docket sheets an “in custody docket sheet” and an “out of custody docket sheet”.] (Finding your client on the docket sheet and being able to tell the judge where your client is on the docket is a good practice anytime there are numerous defendants on a court’s docket.) There is usually a line. If you are appearing for a felony make sure that by the time you get up to the judge that you have retrieved the file for the case you are appearing on. On the inside cover write your bar number and name in the appropriate place and retrieve a copy of the information from the file, if you don’t already have one.
At the initial appearance the judge will set a preliminary hearing date and recognize your client back to that date.
Discovery Prior to Preliminary Hearing
Discovery prior to the preliminary hearing is governed by Title 22 O.S. §258. In order to receive a copy of the preliminary hearing discovery you need to make a request. I would make the request as soon as possible. Included as attachment # 4 is a discovery request that I fax to the District Attorney’s Office to receive discovery for preliminary hearing.
At the preliminary hearing the judge will call the docket. When the judge calls your clients case the judge wants to know what is going to happen with the case. You can announce “ready” meaning that you are ready to put the preliminary hearing on. You can announce “conference” which means you need to conference with the DA and or your client. You can announce “that will be for a waiver” meaning you intend on waiving your preliminary hearing. It could be for a “waiver and a plea” which means you have a deal worked out and you are going to waive and plea at the preliminary hearing level. If your client is not there. Tell the judge that you have not seen your client yet and ask him or her to take a bench warrant under advisement. It is up to the judge whether or not to do that.
Prior to the Preliminary Hearing the district attorney will typically give you a recommendation. (Frequently called a “Rec”) Once you have received the discovery and had and opportunity to discuss the discovery and the district attorney’s “rec” with your client you will need to make a decision on whether you want to have a preliminary hearing or accept the district attorney’s recommendation.
Recommendations have their own language. A typical recommendation would be a “2 PSI”. The 2 in “2 PSI” refers to the term of years. That means that your client enters a plea of guilty and a Pre-Sentence Investigation is performed. Based upon that PSI the sentencing judge will sentence your client to a 2 year deferred sentence, a 2 year suspended sentence or 2 years in prison. Sometimes a district attorney will offer a deferred sentence to your client or a suspended sentence to your client at the preliminary hearing level. This also may be referred to as a “straight deferred” or a “straight suspended”.
A deferred sentence means that your client enters a plea of guilty, the judge accepts the plea but the judge does not find your client guilty. The judge defers the sentencing of your client for a period of time and if your client meets all of the conditions required of him or her; the judge allows your client to withdraw their plea and the case is dismissed and expunged. Please note the Expungement under a deferred sentence will still show the arrest it will just not show that your client was found guilty or that your client entered a guilty plea. (This is different and not as good as an Expungement under Title 22 O.S. §18) If your client completes a deferred sentence he or she will not be a convicted felon. The maximum term of a deferred sentence is 5 years. (See Title 22 O.S. §991 c, paragraph a)
A suspended sentence means your client is found guilty and is a convicted felon. Your client is sentenced to prison then the sentence is suspended upon your client complying with the rules and conditions of probation. As long as your client does what they are supposed to do they will not go to prison.
A split sentence is a sentence that requires your client to go to prison for a period of time and then to be on probation for a period of time. You will hear this referred to as “2 in and 3 out” or whatever the term of years that are involved.
There are many factors to consider when evaluating the case. These items should be discussed with and explained to your client. Is the crime your client charged with an 85% crime; meaning your client must serve at least 85% of the time before being released? (See Title 21 O.S. §12.1 and 13.1) Does the crime currently require your client to register as a sex-offender. (See Title 57 §581; I say currently require because the sexual offender registration laws are not considered Ex Post Facto as to punishment and could change even after your client pleads.)
If your client already has 2 felony convictions there is a statutory prohibition against that individual receiving a suspended sentence unless the state “dismisses” or “strikes” the 2 nd page. Some offenses have prohibitions against receiving deferred sentences.
If you and your client desire to accept the district attorney’s offer you will need to complete a “Waiver of Preliminary Hearing”. Some cases can be resolved or pled at the preliminary hearing level “on the 3 rd Floor” and some cases must be resolved at the district court level.
All PSI recommendations must be resolved at the District Court level.
If you do have the preliminary hearing and your client is “bound over” to district court the next step in the process is District Court Arraignment.
Initial District Court Arraignment
I have stated the “Initial” District Court Arraignment because if your client is bound over for trial and you intend on filing a motion to quash you should ask the court to pass the District Court Arraignment to allow you an opportunity to file motions upon the preliminary hearing transcript. If you do this the judge will give you a date to have your motions filed by and another District Court Arraignment date.
Motion to Quash
A Motion to Quash for insufficiency of evidence is governed by Title 22 O.S. § 504.1.
District Court Arraignment/Decision on Motions
If you file a motion to quash, the judge will give you a new date for a hearing. On the new date the judge will rule upon your motion to quash. If the judges denies your motion then the Court will proceed with district court arraignment.
What the Court wants to know is whether or not you and your client has received a copy of the information, whether your client waives the formal reading of the information and what your clients plea is. (You should generally waive the formal reading of the information)
You cannot appeal the Judge’s denial of a Motion to Quash at this point. The state can however, appeal the Judge’s granting of the motion to Quash. To appeal the denial of a motion to quash you must wait until your client is convicted and raise the issue on direct appeal.
You should already know what you intend on doing if the judge denies your motion to quash. (Most will be denied.) Your options at that point are to enter a plea that date. Set the matter for trial. Or ask the Court for a no issue disposition date. When you ask for a no issue disposition date you are telling the judge that you intend on entering a plea on that date. The judge will likely ask your client if he or she understands that. Before you ask for a no issue disposition date make sure that you have your client’s permission. If you need time to discuss the matter with your client or the DA ask for a conference and the judge will recall the case after the conferences.
If you set your case for trial some judges will give you a deadline before trial to have your motions filed by.
How to Obtain Expert Assistance
If you have a client who is indigent you may be able to get expert assistance at state expense. The most significant factor in determining whether you are entitled to expert assistance is whether or not your client truly needs the assistance. Assistance may include a private investigator or expert witness. My advice is to make sure that you really need the assistance before requesting it.
Discovery hearings at the district court level are also referred to as Allen hearings. (Named after Allen v State, 1997 OK CR 44) Discovery at the District Court level are governed by Title 22 O.S. § 2002 along with a both state and federal case law. (See Attachment #8 for a sample Discovery Motion)
The jury trial comes after the discovery hearing. I am not going to attempt to explain a jury trial on this page.. There is simple not enough time.To learn more about jury trial strategy you can read "The Needle".
If your client enters a plea and there is a PSI the judge will set a sentencing date when the judge will pronounce his or her sentence. If your client is convicted at a Jury trial the judge will also set a sentencing date where the judge will sentence your client. At a trial the jury will return a verdict that includes the sentence. While the judge is not bound to impose that sentence they almost always give your client the sentence the jury recommends.
Notice of Intent to Appeal & Designation of Record
If your client is convicted at a trial and they wish to appeal their conviction, it is the trial counsel’s responsibility to file a Notice of Intent to Appeal and Designation of Record within 10 Days of the sentencing. (The 10 days includes weekends and holidays) This form is available on the Oklahoma Court of Criminal Appeals Website.
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Tulsa Criminal Defense Lawyer: 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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