Smith v. State

Court of Criminal Appeals of Oklahoma

Smith v. State

1961 OK CR 10, 362 P.2d 113, 1961 Okla. Crim. App. LEXIS 163

CourtCourt of Criminal Appeals of Oklahoma

DecidedJanuary 4, 1961

DocketA-12899

StatusPublished

Cited by13 cases

This text of 1961 OK CR 10 (Smith v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. State, 1961 OK CR 10, 362 P.2d 113, 1961 Okla. Crim. App. LEXIS 163 (Okla. Ct. App. 1961).

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Opinions

BRETT, Judge.

This is an attempted appeal by Tom Smith, plaintiff in error, defendant below. He was charged by information in the Superior Court of Seminole County for the crime of receiving stolen property (21 O.S.A. § 1713), allegedly committed on June 21, 1959, by receiving a certain Zenith television set, knowing the same to have been stolen. He was tried by a jury, and his punishment fixed at one year and one day in the State Penitentiary. A minute discloses that he was so sentenced, and from which this appeal has been perfected.

The Attorney General has moved to strike the casemade on the basis that the same was not prepared, served, signed and settled, as by law provided. 12 O.S.A. 1951 § 958. The State’s motion is based upon the following facts, as reflected in the record:

“The verdict of the jury was filed on October 29, 1959. Sentence date was set for November 5, 1959, but sentence was not pronounced on that date. Motion for a new trial was filed' on November 7, 1959. Defendant was given 60 days in which to make and serve casemade. This 60-day period expired on January 6, 1960. On January 4, 1960 the court granted 60 [114]*114days additional extension of time. This 60-day period expired on March 6, 1960, and there was no further extension of time in which to make and serve casemade.

“Even though the court reporter had certified the casemade on February 18, 1960, it was never served on the county attorney until the 26th day of April, 1960, which was long after the expiration of the time allowed by order of court. It further appears that such purported casemade was never certified by the attorneys, nor was there any stipulation of its correctness, nor was the county attorney notified of any time of settling and signing of same by the court, which settlement took place just two days after the case-made had been served on the county attorney.”

The grounds for the foregoing motion are substantially conceded in the response of plaintiff in error, wherein he admits that:

“ * * * the casemade, or record, shows the facts and dates set out in the second paragraph of the State’s motion to strike casemade.”

The other allegations contended in the motion are substantially correct, particularly that the casemade was not served on the county attorney until April 26, 1960, which was long after the time allowed by the trial court. The foregoing facts render the casemade invalid for the purpose of this appeal, since the same was not served, signed, and settled within the time allowed by law or a valid extension thereof. Brown v. State, 89 Okl.Cr. 389, 208 P.2d 1143, 1144. The casemade is accordingly stricken. We thought that under the terms of 22 O.S.A.1951 § 1060, the purported casemade, having been filed within six months after judgment and sentence, could be considered as an appeal by transcript. Hoofer v. State, 82 Okl.Cr. 237, 164 P.2d 247, 168 P.2d 313.

It has been repeatedly held that the manner of taking an appeal is a matter of legislative prescription, and failure to comply with the law relating thereto will be fatal to the appeal. Dobbs v. State, 5 Okl.Cr. 475, 114 P. 358, 115 P. 370; Altizer v. State, 59 Okl.Cr. 456, 60 P.2d 812.

This record cannot be considered, even as a transcript, since the casemade does not contain a formal judgment and sentence. It has been repeatedly held that this Court does not acquire jurisdiction in an appeal by transcript where transcript or casemade contains no copy of the judgment of the trial court, and under such conditions the appeal will be dismissed. Patton v. State, 60 Okl.Cr. 409, 64 P.2d 1245; Payne v. State, 84 Okl.Cr. 166, 180 P.2d 193; State v. Smith, Okl.Cr., 268 P.2d 587.

Therefore, under the foregoing authorities, this Court is without jurisdiction to consider the alleged appeal on the basis of either an appeal by case made, or by transcript, and is without authority to grant any relief in the premises.

This case has been most unfortunately handled from the standpoint of defendant, but since we are without jurisdiction, the appeal is, accordingly, dismissed.

POWELL, P. J., and NIX, J., concur.

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BRETT, Judge.

This is an attempted appeal by Tom Smith, plaintiff in error, defendant below. He was charged by information in the Superior Court of Seminole County for the crime of receiving stolen property (21 O.S.A. § 1713), allegedly committed on June 21, 1959, by receiving a certain Zenith television set, knowing the same to have been stolen. He was tried by a jury, and his punishment fixed at one year and one day in the State Penitentiary. A minute discloses that he was so sentenced, and from which this appeal has been perfected.

The Attorney General has moved to strike the casemade on the basis that the same was not prepared, served, signed and settled, as by law provided. 12 O.S.A. 1951 § 958. The State’s motion is based upon the following facts, as reflected in the record:

“The verdict of the jury was filed on October 29, 1959. Sentence date was set for November 5, 1959, but sentence was not pronounced on that date. Motion for a new trial was filed' on November 7, 1959. Defendant was given 60 days in which to make and serve casemade. This 60-day period expired on January 6, 1960. On January 4, 1960 the court granted 60 [114]*114days additional extension of time. This 60-day period expired on March 6, 1960, and there was no further extension of time in which to make and serve casemade.

“Even though the court reporter had certified the casemade on February 18, 1960, it was never served on the county attorney until the 26th day of April, 1960, which was long after the expiration of the time allowed by order of court. It further appears that such purported casemade was never certified by the attorneys, nor was there any stipulation of its correctness, nor was the county attorney notified of any time of settling and signing of same by the court, which settlement took place just two days after the case-made had been served on the county attorney.”

The grounds for the foregoing motion are substantially conceded in the response of plaintiff in error, wherein he admits that:

“ * * * the casemade, or record, shows the facts and dates set out in the second paragraph of the State’s motion to strike casemade.”

The other allegations contended in the motion are substantially correct, particularly that the casemade was not served on the county attorney until April 26, 1960, which was long after the time allowed by the trial court. The foregoing facts render the casemade invalid for the purpose of this appeal, since the same was not served, signed, and settled within the time allowed by law or a valid extension thereof. Brown v. State, 89 Okl.Cr. 389, 208 P.2d 1143, 1144. The casemade is accordingly stricken. We thought that under the terms of 22 O.S.A.1951 § 1060, the purported casemade, having been filed within six months after judgment and sentence, could be considered as an appeal by transcript. Hoofer v. State, 82 Okl.Cr. 237, 164 P.2d 247, 168 P.2d 313.

It has been repeatedly held that the manner of taking an appeal is a matter of legislative prescription, and failure to comply with the law relating thereto will be fatal to the appeal. Dobbs v. State, 5 Okl.Cr. 475, 114 P. 358, 115 P. 370; Altizer v. State, 59 Okl.Cr. 456, 60 P.2d 812.

This record cannot be considered, even as a transcript, since the casemade does not contain a formal judgment and sentence. It has been repeatedly held that this Court does not acquire jurisdiction in an appeal by transcript where transcript or casemade contains no copy of the judgment of the trial court, and under such conditions the appeal will be dismissed. Patton v. State, 60 Okl.Cr. 409, 64 P.2d 1245; Payne v. State, 84 Okl.Cr. 166, 180 P.2d 193; State v. Smith, Okl.Cr., 268 P.2d 587.

Therefore, under the foregoing authorities, this Court is without jurisdiction to consider the alleged appeal on the basis of either an appeal by case made, or by transcript, and is without authority to grant any relief in the premises.

This case has been most unfortunately handled from the standpoint of defendant, but since we are without jurisdiction, the appeal is, accordingly, dismissed.

POWELL, P. J., and NIX, J., concur.

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1961 OK CR 10, 362 P.2d 113, 1961 Okla. Crim. App. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-oklacrimapp-1961.

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