PERSHALL v. STATE
2017 OK CR 13
Okla. Crim. App.2017Background
- Petitioner Amon Waldo Pershall, Jr. pleaded guilty in Caddo County (CF-2009-102) to DWI (second or subsequent) and received a ten-year suspended sentence; sentence was revoked March 24, 2016.
- Pershall filed an original Application for Post-Conviction Relief on May 11, 2016; the district court denied relief on June 29, 2016; Pershall did not receive notice and missed the appeal deadline, and his initial post-conviction appeal was dismissed.
- On October 20, 2016, Pershall filed a second application seeking an appeal out of time; the district court granted relief allowing an out-of-time appeal on October 26, 2016.
- Pershall filed a Petition in Error and a Notice of Post-Conviction Appeal in the district court on November 7, 2016, but did not include a copy of that Notice in his filing to this Court; he later tendered a Motion to Supplement the record with that Notice.
- This Court found the Notice previously filed and tendered was for a different appeal (PC-2016-1018) — it sought review of the order granting appeal out of time, not the original denial — and Pershall did not file the required Notice after this Court’s November 30, 2016 order granting the out-of-time appeal.
- The Court concluded Pershall failed to comply with Rule 5.2(C)’s requirement to file a Notice of Post-Conviction Appeal and dismissed the post-conviction appeal for lack of jurisdiction and an inadequate record.
Issues
| Issue | Pershall's Argument | State's Argument | Held |
|---|---|---|---|
| Whether failure to file a Notice of Post-Conviction Appeal deprives this Court of jurisdiction and warrants dismissal | Pershall contended he complied with Rule 5.2(C) (pointing to a Notice he had filed previously and tendered) | The State maintained no timely Notice was filed for the present appeal, so the record is incomplete and the Court lacks jurisdiction | Court held filing the Notice is jurisdictional; failure to file the required Notice after the November 30, 2016 order warranted dismissal |
| Whether a previously filed/tendered Notice (from a different case number) satisfied the Rule 5.2(C) requirement for this appeal | Pershall argued the attached Notice initiated the appeal and thus satisfied the requirement | The State (and record) showed that the attached Notice pertained to a different appeal (PC-2016-1018) and did not seek review of the original denial | Court held the tendered Notice related to a different proceeding and did not satisfy the requirement; it could not save the present appeal |
Key Cases Cited
- Blonner v. State, 127 P.3d 1135 (Okla. Crim. App. 2006) (filing requirements for appeals are jurisdictional)
- Burnham v. State, 43 P.3d 387 (Okla. Crim. App. 2002) (appeal-filing requirements are jurisdictional in various post-conviction contexts)
- State v. Young, 989 P.2d 949 (Okla. Crim. App. 1999) (failure to meet appeal procedures affects jurisdiction)