Rogers v. State

104 So. 2d 481, 39 Ala. App. 441, 1958 Ala. Civ. App. LEXIS 31

• Court: Alabama Court of Appeals
• Decided: March 11, 1958
• Docket: 8 Div. 163
• Status: Published

Opinions

HARWOOD, Presiding Judge.

This appellant was adjudged guilty on 24 November 1956.

On 10 December 1956 he gave notice of appeal.

On 4 January 1957 a motion for a new trial was filed, and was set for hearing on 26 January 1957.

An amendment to the motion for a new trial was filed on 2 February 1957, and the motion for a new trial as amended was heard and overruled on that day.

The transcript of the record was filed in the circuit court' on 17 January 1957, and the entire record was filed in this court on 3 April 1957.

The Attorney General has filed a motion to strike this record because not timely filed.

The motion is well taken.

The motion for a new trial was not filed' until 4 January 1957, some 41 days-after judgment. The motion, and orders, pursuant thereto, were therefore functus, officio, the lower court having lost jurisdiction to entertain such motion upon the expiration of 30 days from the date of judgment. Bullard v. State, 29 Ala.App. 117, 192 So. 430; Clark v. State, 38 Ala.App. 480, 87 So.2d 669.

We must therefore look to the date of the notice of appeal, that is, 10 December 1956 in reckoning the time.

The transcript of evidence was timely filed in the circuit court, that is, within-60 days of the date of the notice of appeal.

The record was not however filed in-this court until 3 April 1957, some 75 days-after the filing of the transcript of the record in the circuit court.

No request for extension of time for filing the record was requested either in the court below, or in this court.

The motion of the Attorney General to strike the record is therefore well taken. Clark v. State, supra; Lane v. State, 38 Ala.App. 487, 87 So.2d 668.

Record stricken; appeal dismissed.