EARNEST v. STATE

EARNEST v. STATE
1969 OK CR 283
462 P.2d 316
Case Number: A-14765
Decided: 10/22/1969
Oklahoma Court of Criminal Appeals

Appeal from the District Court of Choctaw County; Howard Phillips, Judge.

Plaintiff in Error, Jess Earnest, was tried and convicted in the District Court of Choctaw County, Oklahoma, for the crime of grand larceny, sentenced to three years in the state penitentiary, and appeals. Judgment and sentence affirmed.

Lon Kile, Hugo, for plaintiff in error.

Don Ed Payne, Dist. Atty., Vester Songer, Asst. Dist. Atty., for defendant in error.

MEMORANDUM OPINION

BRETT, Presiding Judge.

¶1 Plaintiff in Error, Jess Earnest, hereinafter referred to as defendant, was convicted in the District Court of Choctaw County, Oklahoma, Case No. 3689, of the crime of grand larceny and sentenced to three years imprisonment. From that judgment and sentence, an appeal has been perfected to this Court.

¶2 After defendant had been granted a continuance, he came on for trial on November 9, 1967, while represented by court appointed counsel, Mr. Lon Kile. The jury returned a verdict on November 10, 1967, of guilty and assessed the punishment at three years imprisonment. Judgment and sentence was then imposed by the trial judge, the Honorable Howard Phillips, on November 15, 1967, in accord with the jury verdict.

¶3 On May 14, 1968, a petition in error and record of the trial were filed with this Court by the court appointed counsel, Mr. Kile. Subsequently, on March 5, 1969, this Court, by order, released the court appointed counsel from further obligation upon a finding that the defendant was no longer indigent. This Court's order, releasing court appointed counsel, gave the defendant sixty days in which to secure private counsel in order to file briefs in support of his appeal. A copy of this order was personally served on the defendant on March 8, 1969, by a Choctaw County deputy sheriff. However, no briefs were filed or extensions requested and this cause was summarily submitted on June 12, 1969, in accordance with Rules 6 and 9 of this Court.

¶4 Accordingly, we have examined the record filed herein for fundamental error and, finding none, conclude that the judgment and sentence should be affirmed. The issues were properly submitted to the jury, and the sentence is not excessive. We are, therefore, of the opinion that defendant had a fair and impartial trial, and the judgment and sentence is hereby affirmed. Judgment and sentence affirmed.

BUSSEY and NIX, JJ., concur.