Oklahoma State Felony Process
If you are charged with a felony in Oklahoma your are either charged in State or Federal court. If you are charged in Federal Court charges have been filed against you in the Western District, Northern District, or the Eastern District of Oklahoma. The Western District is located in Oklahoma City, the Northern District is located in Tulsa and the Eastern District is located out of Muskogee. This page gives a description of the Oklahoma State Felony Process. This page is written specifically for those individuals who have been charged by a on the the county district attorney's offices with state felonies. Much of the information in this page will also be applicable to those charged with state felonies in other counties.
The formal felony process typically begins with the filing of the Information or an arrest. The information is a written allegation filed by the Tulsa County (or other District Attorney's) Office. (The felony process can also begin with an Indictment from a grand jury but this is very unusual for individuals charged with Oklahoma State Felonies.)
If the defendant has not been previously arrested an arrest warrant will be issued for the defendant and a bond will be set. No notice will be given to a defendant that a warrant has been issued for their arrest. Often the first notice that a defendant receives that a warrant has been issued for his or her arrest is when law enforcement officials arrest them. (To find out if someone is in David L. Moss, the Tulsa County Jail, go to Tulsa County Inmate Information Center. Or call 918-596-8900)
Frequently individuals will know that they are being investigated for a crime and that criminal charges are a possibility. To check charges have been filed against an individual you can search on the Oklahoma Supreme Court Network (OSCN). Search the "Court Dockets" screen for the county that you believe charges have been filed in by entering the first and last name of the individual you are checking to see if charges have been filed on behalf of.
If an individual has been arrested without the issuance of a warrant than that idividual will be given a court date to appear in court. If charges are not filed by the Tulsa County District Attorney's Office than that individual will be released from jail or if they have bonded out of jail their bond will be exonerated. (This usually does not occur on the defendant's first appearance in court.)
Once the District Attorney's office files an information the defendant's case will be given a felony case number. An example of a felony case number is CF-2003-1284. All felony case numbers began with “CF”. The next part of the case number is the year that the Felony was filed in, “2003”. The last part of the number “1284” means that this is the 1284th felony case filed in 2003.
Sometimes you may hear someone refer to a “No File” number. Every time someone is arrested for a felony that charge or case is given a “no file” number. The number will look very similar to a normal felony number. For example a typical number may be NF-2003-1456. The “No File” number is used to track a case prior to the District Attorney’s office filing formal charges. No File or NF numbers are not available on OSCN but the Court Clerks are able to access those numbers.
If an individual is arrested without the issuance of an arrest warrant, a probable cause arrest, their first appearance in court will be to set a bond, if a bond has not already been set. If that person is still in jail, David L. Moss, they will appear in court via a video conference and will not actually be physically present in the courtroom. If that person has bonded out of jail they will be given a court date and they will need to appear in Room 173 of the Tulsa County Courthouse at 9:30 am on the date of their court appearance. For individuals arrested on probable they are typically required to return to court on a latter date in order to give the district attorney’s office an opportunity to decide whether formal charges will be filed.
If an individual is arrested after the issuance of arrest warrant or they are arrested on probable cause and the District Attorney’s Office has filed formal charges against that person, than they will be expected to have an attorney when they appear in Court. At arraignment the defendant will be given a copy of the charges filed against them, the Information, a plea of not guilty will be entered at that time and a date for the Preliminary Hearing will be set.
If that individual needs some time to hire an attorney they can ask to have their arraignment passed to give them time to hire an attorney. If an individual is without the ability to hire an attorney than they can request a pauper's affidavit and request that the court appoint an attorney to represent them. If a defendant has bonded out of jail there is a presumption that defendant has the resources to hire an attorney to represent them, as a result it may be difficult to get the judge to appoint an attorney for them. However, a defendant is not required to chose between his or her constitutional right to reasonable bail and their right to be represented by counsel if indigent.
Defendants charged with felonies (by information) have an Oklahoma Constitutional Right to a Preliminary Hearing. At the Preliminary Hearing the State of Oklahoma will be required to introduce probable cause that a crime was committed and probable cause that that the defendant committed the crime.
The Preliminary Hearing is an evidentiary hearing and the defendant has a right to be present and to be represented by counsel. A defendant charged with a crime has an Oklahoma and United States Constitutional Right not to incriminate themselves. As a result the defendant cannot be forced to testify at the preliminary hearing.
The judge presiding over the preliminary hearing has the right stop the preliminary hearing once the showing of probable cause has been made. This is known as the "cut off provision". Prior to the Preliminary Hearing it is the policy of the Tulsa County District Attorney’s Office to make copies of the police reports available to the defense attorney. If the district attorney’s office does not make copies of the police reports available at least 5 days prior to the preliminary hearing than the judge hearing the preliminary hearing cannot invoke the cut off provision. (See Statutue 22 O.S. Section 258)
After the conclusion of the evidence the state will rest and the defense attorney will either demur to the evidence or attempt to call defense witnesses. The defense is not necessarily entitled to call defense witnesses at the preliminary hearing. The defense may also make motions such as motions to suppress during the preliminary hearing.
If the judge presiding over the preliminary hearing determines that the state has met its burden than the judge will issue an order binding the defendant over for trial and order the Defendant to appear for District Court Arraignment in front of their assigned district court judge.
The official purpose of a preliminary hearing is to determine if probable cause has been established. It is unusual for a case not to be bound over for trial. Probable cause is a low level of proof and the evidence is viewed in the light most favorable to the state. A defendant could literally have more evidence that he or she did not commit the crime than the state has that they did and still be rightfully bound over.
If the state and the defendant agrees the defendant can waive his or her Preliminary Hearing. Sometimes the waiver of a defendant’s preliminary hearing is a legitimate strategy. However, if a defendant intends to take his or her case to trial then waiver of a preliminary hearing usually is not a good idea. Another purpose for the preliminary hearing is for the defense lawyer to elicit testimony from the state's witnesses that commits the state’s witnesses to a story. It is because of this other purpose that it is usually a bad idea for a defendant to waive his or her preliminary hearing if they intend to go to trial.
The Preliminary hearing is usually the first opportunity to resolve a criminal case. The district attorney handling the case has many other cases and will usually not even look at a case until about a week prior to the preliminary hearing.
In Tulsa County felony cases are assigned to the District Judges based on their case number. Prior to the beginning of a year each potential felony number is randomly assigned to a judge. When the district attorney’s office files a felony information that case is given the next available case number. The defendant’s district judge will be the judge that has been assigned to that case number.
There are six district judges that handle felony cases in Tulsa County. Judge Tom Gillert, Judge Jessie Harris, Judge P. Thomas Thornbrough, Judge Rebecca Nightingale, Judge Caroline Wall and Judge Gordon McAlester. For a listing of these judges and their court room go to TulsaDistrictCourt.Com and click on the "criminal division tab"
The District Court Arraignment is very similar to the first arraignment that a defendant goes to. If a defendant was bound over after a preliminary hearing the defense attorney can file a motion to quash the bind over order. If the defense lawyer wishes to file a motion to quash the defense lawyer can ask the judge to pass the District Court Arraignment to allow the attorney to file motions on the transcript. Typically the Judge will ask and expect that the transcript has been purchased from the Court Reporter.
Once the District Court Arraignment (DCA) occurs either a trial date or a “no issue disposition date” will be set. If a trial date is set there will also be a date set by which the parties are to exchange discovery by. Many judges will set an “Allen Hearing” or a “Discovery Hearing” prior to trial. If the case is set for a “no issue disposition date” than it will be expected that the defendant will enter a plea on that date.
When a defendant enters a plea there are different types of agreements the defendant may enter into with the state. Listed below are the types of agreements and what they mean.
When a defendant receives a deferred sentence it means that the defendant enters a plea, the judge excepts the plea but does not find the defendant guilty. Instead the judge defers the sentencing for a period of time upon certain conditions that the defendant must satisfy. If the defendant complies with the terms of deferment on the review date the defendant will be allowed to withdraw his or her plea and any record of a plea will be expunged. A defendant who successfully completes a deferred sentence will not be a convicted felon.
A defendant who receives a suspended sentence is a convicted felon. They are sentenced to a period of time in the Department of Corrections and that sentence is suspended upon their continued good behavior. If the defendant complies with the conditions of probation they will not be incarcerated in the department of corrections.
“2 PSI, 3 PSI, 4 PSI, Etc…”
A common plea agreement is a “___ PSI”. Basically the defense and the state agrees on a number of years 1, 2, 3 etc.. and whether that time is served as a deferred sentence, suspended sentence or incarceration is decided by the judge based upon a pre-sentence investigation report prepared by the Department of Probation and Parole.
A split sentence is a sentence that is split between incarceration and probation.
Sometimes the State and the Defense agree to a plea bargain that involves the defendant being sentenced to the department of corrections for a period of time. This is commonly referred to as “In Time”.
Many people are surprised to learn that discovery in a criminal case is more restrictive than discovery in a civil case. Discovery in criminal cases is governed by statute, Title 22 O.S. Section 2002, and case law. Most District Judges will set an "Allen Hearing" or "Discovery Hearing" to make sure that both parties have exchanged discovery. This hearing is set at least 10 days prior to the trial. The name "Allen Hearing" comes from the Oklahoma Court of Criminal Appeals Allen v. State, 1997 OK CR 44.
Every defendant charged with a felony has an Oklahoma and United States Constitutional Right to a Jury Trial. Felony Juries consist of twelve jurors. The jury decides questions of fact and the judge decides questions of law. There are numerous rights associated with a juror trial including the right not to testify, the right to confront the witnesses, the right to be represented by counsel, and the right to use the court’s process to compel the production of favorable evidence.
Every Jury trials begin with jury selection. Jurors are called to the courtroom and the judge’s clerk randomly selects the potential jurors for the case by drawing their names out of a box. The judge will then question the potential jurors to ensure that each juror meets the appropriate qualifications. Jurors must live in Tulsa County and they cannot be convicted felons. The judge asks questions to determine if there is any reason that a juror cannot be fair.
Once the judge is finished with the initial questioning the district attorney handling the case questions the potential jurors. After the district attorney is finished questioning the jurors the defense will be allowed to question the jurors. If during the questioning either the attorney for the state or the defense uncovers a reason that they believe an individual juror cannot be fair that side can ask the court to excuse that juror for cause. If the judge excuses that juror another juror will be called to replace that juror.
After each side has passed the jury for cause each side begins exercising their preemptory challenges. In non-homicide cases each side is allowed five (5) preemptory challenges. In a homicide case each side is allowed nine (9) preemptory challenges. Each side can exercise its preemptory challenges for any reason that it desires but it cannot exercise them for the wrong reason, potential jurors cannot be excused on the basis of their race, religion or sex. After each side has exercised their preemptory challenges the remaining jurors are the jury that will hear the case.
After the jury is selected the next step in the trial process is the opening statement. Since the state has the burden of proof, the attorney for the state will give the opening statement first. The opening statement is the time for each side to explain to the jury what they anticipate that the evidence will be; a sort of road map to the expected evidence. Parties are not allowed to argue the evidence in the opening statement. The defense can either give their opening statement at the beginning of the trial or reserve their opening statement until the beginning of the defense case.
Presentation of Evidence
After the opening statements have concluded the state begins presenting their case. The state will call witnesses to the stand and ask those witnesses questions designed to elicit the relevant testimony. During the witnesses testimony both sides have the opportunity to introduce exhibits such as physical evidence, written statements, video statements, photographs and videos.
After the state conducts its direct examination the defense is allowed to cross-examine the witness in order to elicit favorable information not brought out in the direct examination or to discredit the credibility or testimony of the witness. After the state has finished presenting its evidence the state will rest and the defense will be allowed to present its evidence if it chooses to do so. The defendant has a constitutional right to testify if he or she desire and if the defendant chooses not to testify than no mention of the defendant’s choice can be made by the prosecution.
The above described process will be repeated until both sides have introduced all of the admissible evidence that they desire to introduce. If during the course of the trial there is a dispute concerning the admissibility of evidence that dispute will be resolved be the judge after hearing arguments of both parties and reviewing the applicable law.
Instructing the Jury
After the close of all the evidence the Judge will instruct the jury on the applicable law. Jury instructions are concise statements of the law designed to give the jury the law that they need in order to decide the case. The judge decides the applicable law but the jury applies the law to the evidence to determine the facts of the case. Most of the instructions are selected from the Oklahoma Uniform Jury Instructions known as OUJIs. OUJIs can be found on the internet on the Oklahoma Supreme Court Network.
Since the state has the burden the state will give the first closing argument and the final closing argument. During the closing argument the state will review the evidence and argue reasonable inferences from that evidence. After the conclusion of the state’s first closing argument the defense will be allowed to give its closing argument. Then state will conclude with its final closing argument.
After hearing the evidence in the trial, listening to the jury instructions and the arguments of counsel the jurors retire to deliberate their verdict. The verdict of the jury must be unanimous whether for guilt or innocence. If the jury is unable to decide the case a mistrial will be declared and the state has the option of retrying the defendant for the charges. If a jury reaches the verdict the jury will announce its verdict in open court.