Also, did you file an appeal or just the Application for Post Conviction Relief? What was the Application based on? What grounds?
The defendant filed direct appeal. The appeal was affirmed. The Application is based on ineffective counsel. Counsel did not provide a drug expert witness in a negligent homicide case where thc was found in defendants system. New evidence has also been found showing that prosecution's drug expert lied under oath by saying that one ng/ml causes a person's driving to be impaired. all of this is under ineffective counsel. Defendant has found expert who will testify that prosecution expert did not know what he was talking about or just straight out lied.the judge allowed marijuana evidence into trial based on prosecution proffered testimony. If defense counsel had expert judge would not have allowed that evidence into trial. That evidence was clearly the main cause of conviction. Judge had said in pre trial hearing that if there was not enough thc to cause driver to be impaired he would not allow mj evidence into trial. The prosecution expert provided what he wanted to hear.
How long ago was the judgment entered?
Judgement for trial was Nov 2011. Appeal court affirmed judgment and sentence May 2013.
What was the charge the defendant was convicted of? What was sentence?
Negligent homicide. A misdemeanor in this state. He received maximum 1 year sentence, $1000 fine and court cost. He has been serving his time for 2 months now in county jail.
Was it a trial by judge or jury?
Trial by jury.
You said. "There is no motion to dismiss or anything that would be effective, you just need to set a date for a hearing on the motion.."
Are you saying the Application for Post Conviction Relief is a Motion and who sets the date for the hearing? In other words does the defendant need to now file a separate motion for a hearing on the APCR?
You also said "..The State really can't default on a motion like this.." Are you saying the state has to file a written objection and is the time limit 30 days from the time the APCR was filed?
You said in previous post: " The State really can't default on a motion like this however, if they start to put on any witnesses or present a defense you could argue that by failing to file a response they have waived the right to do anything other than cross examine your witnesses since it would have denied you due process as there was no notice they intended to defend. You would want to do some legal research and have some cases ready on this point.." What do you mean by "the state cannot default on a motion like this.." In reponse to this particular question you said the state does not have to file a written objection. So what is considered a "default"?
You said above : "..by failing to file a response they have waived the right to do anything other than cross examine your witnesses since it would have denied you due process as there was no notice they intended to defend." "Then you say the state does not have to file a written objection." How do they file a response without it being written?
The following are statement from the oklahoma law on post conviction relief. I just need some clarification on some of the language.
This is from title 22:1083 "Response by the State--Disposition of application."
(a) Within thirty (30) days after the docketing of the application, or within any further time the court may fix, the state shall respond by answer or by motion which may be supported by affidavits.. "
it says "..state shall respond by answer of by motion.." what would be an example of "..respond by answer.." Does this mean the prosecution talks to the judge or defendant by phone and explains what they plan to do?
The defendant in his APCR requested funds to pay for his expert and gave the amount needed ,$3000 , if a hearing is needed. Will he need to file a separate motion for funds for that expert or is the way he did it sufficient?
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