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MyraB
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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For Myra B: The defendant had his Motion for Suspended Sentence

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For Myra B: The defendant had his Motion for Suspended Sentence hearing this week but it was not successful. Along with the prosecutions objections they had a letter from the family to the judge requesting that the defendant not be given a suspended sentence.
The defendant did very well. He used a lot of your input on showing remorse. (That did turn out to be one of prosecution's objections.) The judge was very impressed with what he had to say (as well as others in the room full of people).
The judge said having a job waiting and staying out of trouble while he was awaiting opinion from appeal court was not enough for suspended sentence. However the judge went on to say that the defendant had strong points in his application for post conviction relief and he would try to get some decision on that as soon as possible. He asked the prosecution if they had a copy of the application yet. The prosecutor said no not yet. The judge advised the defendant to be sure to get her a copy. She has been sent a copy but the court clerk said she gave one to DA's office same day it was filed. That was 4 days before this motion to suspend sentence hearing.

So now the question is what happens next? I understand the prosecution has 30 days to object. We expect they will take as long as possible since they really have no foundation to make a valid objection. Once the 30 days are up what can the defendant do to let the judge know 30 days have passed or will the judge automatically be aware and set up a hearing?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  MyraB replied 1 year ago.
Hello again. I'm very sorry to hear that the Motion for Suspended Sentence was not allowed. That motion was discretionary with the judge. However, the Petition for Post-Conviction Relief is not discretionary. If there was a constitutional violation and the defendant did not receive the effective assistance of counsel or a fair trial the judge has no discretion and must allow the petition.

So that there won't be any issues with service the defendant will want to file a Certificate of Service (if he has not already done so) stating that he served the prosecutor with a copy of the petition and brief. The Certificate of Service bears the caption of the case is titled "Certificate of Service" and states:

I, [defendant], hereby certify that on [date] I served the Petition for Post-Conviction Relief and Petitioner's Brief, in accordance with OCCA Rules by mailing [delivering in hand] copies of same by United States mail, postage prepaid to: [name and address of prosecutor]

Signed under the pains and penalties of perjury this ____ day of July, 2013.

Signed by defendant.

If he did not do the mailing and you did, then he can change the wording to "I caused copies to be mailed or delivered by hand.


Then you file the Certificate of Service with the court.

After the prosecutor has filed an opposition, a hearing will be scheduled. You can draft a reply brief to the opposition if there are specific issues you want to address. The hearing may be an evidentiary hearing, meaning the judge may take testimony or receive evidence to support the Petition or from the prosecutor.

Under the Rules for Post Conviction Relief the "judge assigned to adjudicate the application for post-conviction relief shall prepare a detailed order setting out specific findings of fact and conclusions of law on each proposition for relief presented in the application. The order shall also specify the pleadings, documents, exhibits, specific portions of the original record and transcripts, considered in adjudicating the application, which shall then become a part of the record on appeal."

Here is an application that was granted on appeal from denial of post-conviction relief that will give you some idea of the process and maybe give you some hope that the Petition may eventually be successful. http://www.state.ok.us/~oids/coca/BrownDJ.pdf

Please feel free to ask any follow up questions.
Customer: replied 1 year ago.

What can the defendant do if 30 days go by after the DA has received the application and she still has not filed an objection and there is no hearing scheduled? How does the defendant bring this to the judge's attention?

 

Also the defendant requested the court to order the state to pay for the fees of his expert witness to testify at the hearing since he was not provided one at trial as required by state law. Won't the court be obligated to pay those fees?

Expert:  MyraB replied 1 year ago.
He can file a Request for a Hearing. He can do that now or after the 30 days if no hearing has been scheduled, stating that a hearing would facilitate or benefit the court. It appears that a hearing is the normal procedure, but if he needs a prompt, a request for hearing would be appropriate or a call to the clerk's office asking about a hearing date. Generally, the clerk has direct access to the judge and that might be sufficient.
Customer: replied 1 year ago.

Also the defendant requested the court to order the state to pay for the fees of his expert witness to testify at the hearing since he was not provided one at trial as required by state law. Won't the court be obligated to pay those fees?

Expert:  MyraB replied 1 year ago.
It is likely the court would grant the request for expert fees as there is a significant basis for the request and it is essential to the issues presented in the petition. If it is not granted, then that would be a ground for appeal.
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

How would the judge communicate with the defendant that he would be paying for the fees for the expert and in a way that the expert would be assured that he was getting paid?


 

Expert:  MyraB replied 1 year ago.

If he made the motion for the expert fees in writing, he should receive written notice of whether the motion was allowed or denied. Also, any action on the motion would be docketed and available on the court website. The notice would contain the amount allowed. This should be sufficient security for the expert as he will be paid by the state.

If the defendant made the motion orally, or included it within the Petition, he may want to file a separate written motion for the expert fees so that the judge will be sure to see it and act on it before the hearing on the Petition. He will want to send a copy of anything he files to the prosecutor with a certificate of service.

If there is no action on the motion and the date for the hearing is approaching, again he can contact the court clerk and it can be brought to the judge's attention that the expert would be needed for the hearing.

The Post-Conviction Relief Procedure can be found at 22 O.S. sec. 1080-1089 http://www.oklegislature.gov/osstatuestitle.html (See Title 22, then pages 276-280).


Sec 1082 states: Court costs and expenses of representation.

If the applicant is unable to pay court costs and expenses of representation, he shall include an affidavit to that effect with the application, which shall then be filed without costs. Counsel necessary in representation shall be made available to the applicant after filing the application on a finding by the court that such assistance is necessary to provide a fair determination of meritorious claims. If an attorney is appointed to represent such an applicant then the fees and expenses of such attorney shall be paid from the court fund.

 

So at this point, the defendant may be entitled to appointed counsel in preparation for the hearing and any supplement to the Petition.

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

In filing a motion for funds will the defendant need to put the experts name and credentials in the draft? I ask because this expert wanted to remain anonymous until he was assured of getting the funds.

Expert:  MyraB replied 1 year ago.

The motion is not required to include the expert’s identity, but you may want to explain why he is not identified such as “the expert has requested that his identity not be disclosed unless and until funds are obtained to cover his fee.” You might want to suggest that his identity will be disclosed to the court on request. What you must show in the motion is that the expert is necessary and the amount you are requesting is reasonable.

A request for funds to hire an expert witness should generally contain an identification of the type of expert witness sought to be hired, the subject matter to be covered by the expert, brief explanation of why the expert is needed, a specific time budget identifying the amount of time the expert anticipates spending on each portion of the investigation or analysis. In explaining why an expert is needed, the defendant should address both the facts indicating that further analysis is justified and the reason an expert witness is needed to interpret those facts. The motion should include the actual billing rate being requested and the proposed expert’s credentials and experience. Even though you don’t identify him by name you will need to include his CV or credentials or portions thereof to justify the request and the amount of the request.

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 2 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

It would seem that the prosecution would be wanting to know the name of the expert as soon as a motion for funds was filed. Would they have a right to know his name if they requested? Also would they be allowed to question him before a hearing?

Expert:  MyraB replied 1 year ago.
While the motion is pending, there is no real reason that the prosecution has to know who the expert is. There is no prejudice because, at this point, whether or not the expert testifies depends on whether or not the funds are awarded. Often motions for funds for an expert are made before any attempt to locate an expert, so its not unusual that the prosecutor wouldn't know who the expert is at the time of filing. There is no right for the prosecutor to be told who it is, although the court may order the defendant to disclose the expert as a condition of considering or allowing the motion.

Once the motion is allowed, then the defendant can inform the prosecutor and the prosecutor can investigate and verify his credentials, etc. if she wants to. The prosecutor could speak to your expert if the expert was willing to talk with the prosecutor, just as the prosecutor can attempt to speak with any witness. However, the expert could decline to speak with the prosecution. Other than by agreement or a court order, which would be unusual, there is no means by which the prosecutor could question the expert prior to the hearing. Besides, she will have the basis and substance of his proposed testimony and should be able to prepare any cross-examination based on that. If the prosecutor does file a motion to question the expert prior to hearing that the court allows, the defendant might want to request the opportunity to depose the prosecutor's expert in turn.
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 2 other Criminal Law Specialists are ready to help you

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