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Stevexo
Stevexo, Criminal Attorney
Category: Criminal Law
Satisfied Customers: 1000
Experience:  Thirty years Criminal Defense
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Below is a form that is required to be filled out if a defendant

Customer Question

Below is a form that is required to be filled out if a defendant wants to proceed pro se on appeal. But there was nothing to be filled out when the defendant was forced to proceed pro se in the trial when the district court judge allowed his court-appointed attorney to withdraw because a relative paid his bond. (The defendant proceeded pro se through trial and was convicted.) In that form at #7 the defendant is required to say he is not being compelled or coerced to proceed pro se when he actually does fill that way. He also has to completely give up his rights to court-appointed or hired attoney. Is this document even legal? Is this form required in other States to Proceed on appeal Pro Se?

IN THE DISTRICT COURT OF _____________ COUNTY
STATE OF OKLAHOMA

STATE OF OKLAHOMA,

Plaintiff,

vs.
_____________________________,

Defendant.

Application Case No. __________

Original Conviction Case
No. ________
in ________County

Appeal Case No.______


Affidavit of Defendant Requesting to Proceed Pro Se in a Direct
Appeal Pursuant to Section 1051 of Title 22:

1. The district court has explained, and I fully understand, the nature of the crime of which I have been convicted and the severity of the punishment imposed upon me.

2. I understand that I have a constitutional right to the assistance of an attorney in taking an appeal of the judgment against me to the Oklahoma Court of Criminal Appeals and to have an attorney appointed for me if I am unable to afford one.

3. I understand the knowledge and experience that an attorney can provide me.

4. I understand that the conviction(s) I am appealing, if affirmed by the Oklahoma Court of Criminal Appeals, might be used to enhance the punishment of crimes for which I am convicted in the future.

5. I understand that in seeking to take my appeal without assistance of an attorney I am assuming sole responsibility for perfecting and pursuing my appeal in accordance with the Rules of the Oklahoma Court of Criminal Appeals, Ch.18, App. of Title 22, and in accordance with the laws of the State of Oklahoma. I understand that, if I fail to so perfect and pursue my appeal, neither the Oklahoma Court of Criminal Appeals nor any official of the State of Oklahoma is required, or responsible, to correct such failure.

6. I understand that I am precluded from raising, in any subsequent proceeding before this Court, any issue which was raised or could have been raised in my direct appeal. I also understand that I am precluded from raising, in any subsequent proceeding before any court, these issues which could have been raised and any issue concerning the effective assistance of counsel in taking my appeal.

7. I acknowledge that I have not, in any way, been compelled or coerced into waiving and relinquishing my right to assistance of an attorney in taking my appeal. I further acknowledge that I am competent to make said waiver and relinquishment and that it is made knowingly, intelligently and voluntarily.

8. I acknowledge that I have consulted an attorney about my decision to waive and relinquish my right to assistance of an attorney in taking my direct appeal and understand the dangers and requirements I am assuming in representing myself in this matter.

9. I acknowledge that I have been fully advised of my right to assistance of an attorney to take my appeal and the consequences of waiving and relinquishing same.

10. I herewith voluntarily waive and relinquish my right to an attorney, either retained or appointed, to represent me on appeal, and request the Oklahoma Court of Criminal Appeals to so find and allow me to represent myself in all further matters relating to this appeal.

_____________________________________
Date

STATE OF OKLAHOMA
COUNTY OF __________
___________________________________
Signature of Defendant

)
)


___________, being first sworn under oath, states that he/she signed the above affidavit and that the statements therein are true to the best of his/her knowledge and belief.


___________________________________
Signature


Subscribed and sworn to before me this _______day of _______, 20_______.
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Stevexo replied 2 years ago.
Steven T Greene Esq. Qualified as an expert in Criminal Law,30 years of Criminal Defense trial work. Glad to help There is some confusion here. He does not have to fill out this form. If he wants to do the appeal himself he has to sign it, but if he does not want to do it himself he should not sign it. As the form states, if he desires the services of an Attorney one will be appointed, and they will be. The fact that he did not have a court appointed attorney at the trial level is not dispositive of the need for one on the appeal. Usually after conviction a defendant is even more indigent than at the time of trial and being indigent is not a static concept. His being indigent or not can change over time, and usually the longer in jail the more indigent one is. The reason the form has those conditions to proceed pro se, is because there is a Supreme Court case called Feritta that makes it clear that the waiver of counsel must be intelligently and freely waived. If not, after the defendant does the appeal, and say they loose ,they might be able to get a second appeal because they had not waived their right to counsel. He needs to reapply to have the Public Defender represent him for purposes of appeal. Do not let him do the appeal pro se!!!!! Sincerely, Steve
Customer: replied 2 years ago.
The defendant filed a motion for indigent counsel for appeal after he was convicted. There was a hearing and the district judge said he had the wherewithal to get an attorney because his father was willing to pay bond for him and also willing to pay for filing fees and transcript cost in the appeal. the father was willing to do that because the defendant would not have been able to file Intent to Appeal otherwise. The pauper's affidavit clearly says father only willing to pay transcript cost and fees but court denied motion anyway and there is a state appeal case that says family financial status should have no affect on indigent status if family is not willing to help. So right now defendant has no choice but to proceed pro se. Is there some way he can let the appeal court know what is going on here without signing that form? He was allowed to file intent to appeal and designation of record pro se but can go no further pro se without signing that form and then the judge has to sign a form saying he is capable and was not coerced etc.
Expert:  Stevexo replied 2 years ago.
You are right the families finances are not to be utilised to see if he is indigent. I would file that form and change it to the real facts ie that he wants an attorney, cannot afford one ,and does not have the mental ability to proceed pro se. They can't have it both ways, he can't be truly indigent and at the same time have to go pro se if he does not want to. Raise the fact that he is not intelligent enough to do this. If they do not give him counsel for the appeal ,then that will be reversed on appeal and he will get another shot at a belated appeal. Also if you still can, the denial of an attorney on appeal should be appealed. If he signs the form the way it is, it will not be to his benefit, they must be put in a position where if he has to go pro se it will be reversed ,because he has given them facts which show he cannot do this, and if they do not want a belated appeal by him they better give him counsel. Sincerely, steve
Stevexo, Criminal Attorney
Category: Criminal Law
Satisfied Customers: 1000
Experience: Thirty years Criminal Defense
Stevexo and 3 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.

In this case can the defendant or his father also file a complaint with Oklahoma Council on Judicial Complaints, which investigates allegations of judicial misconduct? I ask about the father because it appears the judge is trying to force the father to get an attorney for his son.

 

Would not being provided counsel when the defendant is truly indigent be considered a due process violation?

Expert:  Stevexo replied 2 years ago.
Oh yes, to not afford counsel to an indigent defendant violates his 6th Adm right to counsel, and that would be a Constitutional violation. That is why I am not understanding this. Where I practice, a Judge would rather err on the side of appointing one when perhaps it was not necessary, rather than to not appoint one, and to have the case come back on appeal. That is why this Judge is not to smart, he can give him an attorney and try it once or he can deny the attorney and have to try him again after he wins the appeal. What I would do is to fill out another request for the PD, as by now I am sure his finances are worse, and make sure the form is filled out properly so there is no question that he does not qualify. And also make it clear on the form that he did not post the bond! Then when it is denied again you will be within your time limits for an appeal. Sincerely, Steve
Customer: replied 2 years ago.
You said: "Oh yes, to not afford counsel to an indigent defendant violates his 6th Adm right to counsel, and that would be a Constitutional violation...." So does that mean you are saying yes, the defendant or father could file a complaint with the Oklahoma Council on Judicial Complaints and yes, it is a due process violation?
Expert:  Stevexo replied 2 years ago.
Yes a Due Process violation is a Constitutional violation. You can file a complaint, anyone can file a complaint. I just do not see it doing anything, as if you wanted to show the Judge was wrong ,he should have been appealed and he would have been reversed. Thus the legal work that will help your Son is that which will get him help on his appeal, not a disciplinary action concerning a judge. Sincerely, Steve
Customer: replied 2 years ago.
Ok. Thank you very much.
Customer: replied 2 years ago.
It sounds like if you want to see the Judge punished a reversal on appeal is a worse punishment than filing a complaint to the judicial council. Is my understanding correct? I would like to see a reversal and also see the Judge pay for doing something he knows or should know is wrong.
Expert:  Stevexo replied 2 years ago.
Yes to reverse them on appeal bothers them the most. Sincerely, Streve
Customer: replied 2 years ago.
Thank you.
Expert:  Stevexo replied 2 years ago.
You are very welcome !
Customer: replied 2 years ago.

On this same case, the defendant will have to go before the judge next week on a hearing to get permission to proceed pro se. I sent you a copy of the Affidavit he had to sign in a previous post. He did modify # 7 by striking the portion saying he did not feel compelled in anyway to proceed pro se and explained why he did feel compelled. Mainly he does not have money for lawyer and the court denied his request for court appointed counsel at a previous hearing because his father paid appeal bond. He explained again his father is not willing to help with counsel. He also mentioned that he feels he needs an attorney but has no other choice but to proceed pro se. The defendant's father has also filed an affidavit saying he will not help to pay for counsel.


 


The judge will have to sign an order saying he is qualified and is not in any way being compelled to proceed pro se. I would think the only right thing for the judge to do would be to appoint an attorney but I have a feeling the judge could become upset because of the statements. Could the judge just decline to sign the order to proceed pro se and revoke the defendant's bond and send him to jail?

Expert:  Stevexo replied 2 years ago.
Hi glad to help. As per the rules here at justanswer I cannot continue with the same post and answer a new question over a month after my answer. If you would like to repost this new question I would be glad to work on it, but cannot just continue with posts that were answered over a month ago unless there is a repost of the new question. Sincerely, steve

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