THE OKLAHOMA BAR JOURNAL 26 | JANUARY 2025 that could crop up at an initial appearance, many future issues can be avoided or the groundwork for defenses can be immediately laid if you are prepared. Not only will it help you with your case, but it can help alleviate the stress and anxiety a client may have when presenting themselves to a judge for the first time. ABOUT THE AUTHOR Amanda Lilley is a defense attorney with the Oklahoma Indigent Defense System in the Enid satellite office. She previously served as an assistant district attorney for District 4. Ms. Lilley received her J.D. from the OCU School of Law in 2014 and is currently licensed to practice law in Oklahoma and Texas. ENDNOTES 1. In felony cases, you will have a second court appearance similar to an initial appearance once your client is bound over to district court called a formal district court arraignment. This appearance must be held within 30 days of the bind-over. However, the court can go beyond the 30-day requirement for good cause. See 22 OS 470. 2. 22 OS 466. 3. 22 OS 251, 22 OS 257, 22 OS 465. 4. The statute involved was adopted from Comp. Laws Dak. 1887, §7277, and first appears as Stat. 1890, §5539. It is long established that a defendant can waive reading of the information. See Shivers v. Territory, 13 Okl. 466, 74 P. 899. 5. 22 OS 465. 6. 22 OS 514. 7. 22 OS 452. 8. 20 OS 130, 22 OS 451-452, codifying court rules created during the COVID-19 pandemic to expand access to the courts, allowing for videoconferencing “in all stages of civil or criminal proceedings.” See also District Court Rule 34. 9. 22 OS 301. 10. 22 OS 402. 11. 22 OS 401. 12. 22 OS 303. Also, the district attorney’s office can add endorsed witnesses to the information without notice up until the preliminary hearing. See 22 OS 524. 13. 12 OS 39. 14. In Brill v. Gurich, 1998 OK CR 49, 965 P.2d 404 (Okla. Cr. 1998), the Oklahoma Court of Criminal Appeals reminds us, “The right to freedom before conviction permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction. The judges of this State have a duty and responsibility to apply the law and, further, in these matters they must ensure bail is not used as a tool of punishment.” They then cite to Petition of Humphrey, which outlines the factors to use to determine the amount of bail. 15. For a discussion on the legality of bond schedules, review the opinion and order in Feltz v. Regalado et al., No. 4:2018cv00298 – Document 256 (N.D. Okla. 2021). The appellate court indicates the trial court should go into an individual’s ability to pay their bond at the initial appearance if it was set by bond schedule and the defendant did not post bond by the initial appearance. 16. 22 OS 1105. 17. Oklahoma Constitution, Article 2, Section 8. 18. 22 OS 462. 19. 22 OS 991b. 20. 21 OS 51.1. 21. 22 OS 991a (C). However, the prosecutor may waive this prohibition in writing. 22. 21 OS 644 (I). Deferred sentences on domestic charges qualify as enhancements, as it is still a finding of guilt. See 21 OS 644 (N). Further, the prior conviction does not have to be charged as a domestic for it to qualify as a prior for the purpose of enhancement to a felony. If the parties had a qualifying domestic relationship and a record to support the charge, a simple assault and battery can qualify as an enhancement. See State v. Rutledge, OK CR 8 | 509 P.3d 625 (2022). 23. 22 OS 504. 24. 22 OS 491. 25. 22 OS 492. 26. 22 OS 503. 27. 22 OS 512. 28. 22 OS 812.1 and 22 OS 812.2. 29. See also, United States v. Marion, 404 U.S. 307, 320, 325, 92 S. Ct. 455, 463 (1971); State v. Powers, 952 P.2d 997, 999-1000 (Okla. Cr. 1997). 30. 22 OS 258 requires a show cause be held if a preliminary hearing has not been commenced within nine months of the initial appearance. 22 OK Stat §524 requires defendants to request a preliminary hearing within 10 days of grand jury indictment if the defendant wants one, as a preliminary hearing is not required after indictment. However, the shortened time under 22 OS 812.1 essentially invalidates the speedy preliminary hearing statute. 31. The court held a five-year delay between the filing of the motion to revoke and the defendant’s arrest, making it “apparent the State had abandoned their application,” especially when “the delay was apparently neither caused by nor acquiesced in by appellant.” Cheadle v. State, 1988 OK CR 226, 762 P.2d 995 (1988). 32. See also, United States v. Gomez, 67 F.3d 1515, 1521 (10th Cir. 1995), while not a “bright line beyond which pretrial delay will trigger a Barker analysis,” they are mindful of the one year “presumptively prejudicial” delay recognized in Doggett. 33. Doggett v. United States, 505 U.S. 647652 (citing Barker 407 U.S. at 533-34). In Doggett, the reason for the delay was the government’s negligence in not pursuing Doggett. 505 U.S. at 652-654, 112 S. Ct. at 2691. 34. Barker v. Wingo, 407 U.S. at 531, 92 S. Ct. at 2192. 35. As defined by 10 OS 1408. If the underlying issue is intellectual disability, the court can order a second evaluation through the Department of Human Services. 36. As defined by 43A OS 1-103. 37. 22 OS 1175.2 (A). 38. Id. 39. 22 OS 1175.2 (C). If your client is declared incompetent after evaluation, the state is allowed a “reasonable period of time” for restoration of competency. See 22 O.S. §1175.1(6); “Reasonable period of time” is defined as to not exceed the lesser of: “a) the maximum sentence specified for the most serious offense with which the defendant is charged,” or “b) a maximum period of two (2) years.” If your client cannot be restored, multiple options may be considered, including transitioning to a public guardianship under 22 OK Stat §1175.6b. 40. 22 OS 1175.2 gives procedures and notice requirements. 41. 22 OS 1175.3(D)(1). See also: The Court of Criminal Appeals in State of Oklahoma, ex. Rel. Michael J. Fields, District Attorney v. The Honorable Tom Newby, District Judge, MA 2023-651, affirmed the court’s determination that the court did not have discretion to order a second evaluation from ODMHSAS, which was requested because the state did not agree with the evaluator’s determination of incompetency. Additional briefs on this issue are found in Garfield County case CF-2022-138. 42. 22 OS 1175.3 (E). 43. As defined by 43A OS 1175.1. 44. 22 OS 1175.3 (F). 45. 22 OS 1175.4 (B). 46. 22 OS 1175.4 (B). 47. 22 OS 1175.4 (B), Allen v. State, 956 P.2d 918, 919 (Okl.Cr.1998). 48. 22 OK Stat §1176 (2023). 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.
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