JANUARY 2025 | 25 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. has occurred, whichever happens first.29 Defendants are also entitled to speedy preliminary hearings.30 The court has applied the same speedy trial logic to applications and motions.31 The Oklahoma Court of Criminal Appeals has held that delays in prosecution in excess of just one year are sufficient to trigger speedy trial analysis under Barker v. Wingo, 407 U.S. 514 (1972).32 The factors set out are: length of delay, reason for delay, defendant’s assertion of their right and prejudice to the defendant. When looking at the delay, the court considers “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.”33 Although negligence is a more neutral reason for delay than deliberate bad faith, it is still considered because “the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.”34 If your client is appearing on an application to accelerate or a motion to revoke suspended sentence, you will want to look at the date of the application/ motion filing as well as the procedural history of the case. If there is a significant delay between the filing and your client’s arrest, you may be able to allege that the state failed to prosecute. As the court does look at whether the delay was “acquiesced to by the defendant,” you will want to get your request for dismissal on file and set for hearing as quickly as possible, so as not to waive the speedy trial argument. Competency If you arrive at the initial appearance and have questions about whether your client understands the nature of the charges or whether they can assist in the preparation of their defense due to either intellectual disabilities35 or mental illness,36 you can ask the court to stay the criminal proceedings and set off initial appearance pending a competency evaluation. The question of competency can be raised by any party in the case, including the judge.37 Requests should be in writing unless the court is the party requesting the evaluation.38 You will want to include any concerns about your client’s competency. It can also include any prior mental health history. The court sends your application to the evaluator to assist them in asking questions during the later evaluation or to assist the evaluator in finding treatment records they can reference in the evaluation. Once the application is filed, all criminal proceedings are stayed.39 Depending on your county, the court may require a hearing on your application, while some counties may order the competency evaluation based solely on the application.40 Once a determination is made that a competency evaluation is needed, the court will send an order to the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) for evaluation.41 ODMHSAS will either conduct the evaluation or refer it to a qualified forensic examiner contracted by ODMHSAS. This order will give specific determinations the evaluator must make based on statute42 (i.e., whether the defendant can understand the charges, whether the defendant can consult with their attorney and whether the defendant is dangerous43). Once ODMHSAS completes the evaluation, it will notify the court.44 Parties can stipulate to the report instead of having a hearing. However, if the parties do not agree to the results of the evaluation, a hearing on the report must be held within 30 days.45 This hearing can be in the form of a bench or jury trial. A jury trial must be held within 72 hours of the request for one.46 At a competency trial, the party seeking to show incompetence must do so by a preponderance of the evidence.47 Mental Illness Defense Defendants must raise mental illness defenses with the court within 30 days of an initial appearance for misdemeanors or a formal district court arraignment for felonies. There are several steps involved in requesting that the court pay for the services of a qualified mental health professional if your client cannot afford to pay for those services. Statute does make it clear that a defendant is not required to have an Oklahoma Indigent Defense System attorney to request that the court provide access to a qualified mental health professional to assist in the evaluation and possible presentation of a mental illness defense. This request must be filed at the same time as the notice of intent to use a mental illness defense.48 CONCLUSION While an initial appearance is typically a quick, couple-sentence announcement by counsel with the intent to continue the case to a new date, it can be an effective and important appearance for your client, depending on the circumstances in their case. While this summary barely touches on the wide array of complications
RkJQdWJsaXNoZXIy OTk3MQ==