Jackson v. Commonwealth

344 S.W.2d 381, 1961 Ky. LEXIS 221

• Court: Court of Appeals of Kentucky
• Decided: March 10, 1961
• Status: Published

Opinion

MONTGOMERY, Judge.

Calvin Jackson was convicted of grand larceny and sentenced to five years’ confinement in the state penitentiary. An appeal from that judgment was dismissed on February 23, 1960, for failure to file a bill •of exceptions within the time allowed. Jackson now appeals from an order “dismissing” his motion to vacate the same judgment.

Appellant was tried on February 17, 1959. His motion for a new trial was overruled ■on March 6, 1959. Judgment was entered the same day. Various steps were taken to perfect an appeal which culminated in the order of dismissal for the reason stated. He is now serving his sentence.

■ Appellant moved on December 12, 1960, to have the March 6, 1959 judgment vacated because: (1) The trial court judge failed to extend the time within which to file a bill of exceptions;' and (2) the indictment was alleged to have charged two '•offenses. The first claim of error was considered and found to be meritless when the appeal was dismissed.

The motion to vacate the judgment is treated as a motion for relief under CR 60.02. Harris v. Commonwealth, Ky, 296 S.W.2d 700; Underhill v. Thomas, Ky, 299 S.W.2d 633; Green v. Commonwealth, Ky, 309 S.W.2d 178; Wallace v. Commonwealth, Ky, 327 S.W.2d 17. An examination of the principles stated in the authorities cited reveals no basis to sustain appellant’s motion.

Judgment affirmed.