Opinion
No. 46663.
April 3, 1945.
APPEAL AND ERROR: Necessity for timely notice — sections 13995 and 13997, C., '39. In a criminal case, it appearing of record that no notice of appeal was served in time, as required by sections 13995 and 13997, C., '39, upon motion the appeal will be dismissed.
Appeal from Lee District Court. — JAMES S. BURROWS, Judge.
Thomas Wills, pro se.
John M. Rankin, Attorney General, and Charles H. Scholz, Assistant Attorney General, for appellee.
Defendant was charged with the crime of violation of parole under section 13353, Code of 1939. Upon a plea of not guilty he was tried, convicted, and sentenced, having been duly represented in the district court by L.H. Childs, attorney. Upon this appeal he represents himself. After verdict of the jury on November 16, 1944, but prior to sentence on November 22, 1944, defendant attempted to file notice of appeal, which is assailed by the State as not being an appeal from a final judgment and which defendant himself concedes to be ineffectual. Thereafter, on December 26, 1944, defendant filed a second notice of appeal with the clerk of the district court of Lee county, but there was no service of notice upon the county attorney in accordance with section 13997 of the Code, nor any acceptance of service by him. No further notice or service thereof is shown of record. Said appeal was assailed by the State by motion to dismiss appeal as not taken in time in accordance with section 13995 of the Code. Said motion is hereby sustained and the appeal dismissed. — Appeal dismissed.