ADKINS v. STATE

ADKINS v. STATE
1950 OK CR 40
216 P.2d 360
91 Okl.Cr. 122
Case Number: A-11095
Decided: 03/22/1950
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error Time for Appeal. Where defendant had 60 days to perfect his appeal and the case-made was signed and settled prior to that time, it is required that the same be filed in this court within the 60 day period, where no further extension of time has been granted.

2. Same. Where the case-made has not been filed within the time prescribed by law, this court does not acquire jurisdiction, and the appeal will be dismissed on motion.

Page 123

Appeal from County Court, Cleveland County; Sylvester Grim, Judge.

William McKinley Adkins was convicted of driving a motor vehicle while under the influence of intoxicating liquor, and he appeals. Dismissed.

Homer Cowan, Norman, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES, P.J.

The defendant was convicted in the county court of Cleveland county of the crime of driving a motor vehicle on the public highway while under the influence of intoxicating liquor and was sentenced on March 25, 1948, to pay a fine of $250 and costs.

The Attorney General has filed a motion to dismiss the appeal for the reason it was not filed within 60 days after the judgment was rendered pursuant to the statutory provisions. 22 O.S. 1941 § 1054 [22-1054].

The motion alleges that judgment was pronounced on March 25, 1948; that the case-made was served upon the county attorney on April 6, 1948; that said case-made was settled and signed by the county judge on May 18, 1948, on which date the case-made was attested and filed with the court clerk of said court and withdrawn at that time for the purpose of filing the same in the Criminal Court of Appeals. That the petition in error with case-made attached was filed in the Criminal Court of Appeals on July 15, 1948, which was more than 60 days from the date the judgment and sentence was rendered, and that no order was ever made by the trial court extending the time in which said appeal could be filed in this court.

Page 124

Said motion to dismiss appeal was set for hearing and notice given to counsel. At the time of said hearing no appearance was made to contest said motion and no response to said motion has been filed.

We have examined the record and the facts alleged in the motion to dismiss are sustained by the record. In Butler v. State, 83 Okla. Cr. 105, 173 P.2d 453, the law pertaining to this case is stated as follows:

"Where defendant had 60 days to perfect his appeal, and the case-made was signed and settled prior to that time, it is required that the same be filed in this court within the 60 day period, where no further extension of time has been granted.

"Where the case-made has not been filed within the time prescribed by law, this court does not acquire jurisdiction, and the appeal will be dismissed on motion".

For the reasons above stated, the motion to dismiss the appeal is sustained and the appeal is dismissed.

BRETT and POWELL, JJ., concur.