Adkins v. Commonwealth

441 S.W.2d 417, 1969 Ky. LEXIS 316

Opinion

MONTGOMERY, Chief Justice.

Eli Adkins was convicted of illegally selling intoxicating liquors, second offense, in local option territory. KRS 242.230, 242.990(1). He was sentenced to serve 60 days in jail and was fined $200. Notice of appeal was filed in the circuit court October 9, 1968. On December 12, 1968, appellant filed the clerk’s transcript of the record with the clerk of this court. Included was a motion for an appeal pursuant to KRS 21.140(2). So far Adkins had complied with the appropriate appeal statute and RCr 12.52(2).

The latter rule provides that “the record on appeal shall be made up in the same time and manner as in the case of appeals permitted as a matter of right.” The rule also provides that the motion shall be made at the time the record is docketed in this court. From this point on an appeal on motion is considered 'the same as an appeal as a matter of right. The motion for appeal under RCr 12.52(2) is very different from the motion for appeal under RCA 1.180 involving civil matters.

On April 11, 1969, the appeal was submitted pursuant to RCA 1.270. The rule provides, in part, that an appeal shall be submitted when the time for filing any brief has expired. RCA 1.260 provides, in part, that an appeal may be dismissed if the appellant fails to file his brief within the time allowed. No brief has been filed by Adkins, hence the penalty under RCA 1.260 is applicable.

The appeal is dismissed.

All concur.