Dailey v. State

Full title: OTIS JAMES DAILEY, PLAINTIFF IN ERROR, v. THE STATE OF OKLAHOMA, DEFENDANT…

Court: Court of Criminal Appeals of Oklahoma

Date published: Nov 5, 1969

462 P.2d 278 (Okla. Crim. App. 1969)

1969 OK CR 300

Opinion

No. A-15639.

November 5, 1969.

An attempted appeal from the District Court of Oklahoma County; Ben LaFon, Judge.

Otis James Dailey was charged, tried and convicted of the crime of Rape in the First Degree, was sentenced to serve 20 years in the state penitentiary, and attempts to appeal. Dismissed.

E. Melvin Porter, Oklahoma City, for plaintiff in error.

G.T. Blankenship, Atty. Gen., for defendant in error.

BUSSEY, Judge.

This is an attempted appeal from the judgment and sentence entered in the District Court of Oklahoma County, Oklahoma, wherein Otis James Dailey was charged, tried, and convicted of the crime of Rape in the First Degree. Said judgment and sentence fixing his punishment at 20 years in the state penitentiary, was entered on the 18th day of September, 1969, and thereafter, on the 24th day of October, 1969, a petition in error was filed in this Court.

Rule 29, Section 4(b), of the Court of Criminal Appeals provides:

"A petition in error must be filed with the clerk of this Court within thirty (30) days from the date judgment and sentence is rendered by the trial court; and within five (5) days from the date said petition in error is filed in this Court, plaintiff in error must file one copy of said petition with the clerk of the trial court, and serve one copy thereof on the Attorney General."

In the instant case, judgment and sentence was entered on the 18th day of September, 1969, and the petition in error should have been filed in this Court on or before the 18th day of October, 1969.

In West v. State, Okla. Cr. 462 P.2d 277, we stated:

"When the petition in error is not filed within the time provided in Rule 29, Section 4(b), supra, this Court is without jurisdiction to entertain an appeal and the Court may on its own Motion dismiss the attempted appeal."

Since the provision of Rule 29, Section 4(b), is mandatory, we are of the opinion, and therefore hold, that the attempted appeal should be, and the same is hereby, dismissed, and the Clerk of this Court is directed to issue the mandate forthwith.

BRETT, P.J., and NIX, J., concur.