Opinion
No. 1191.
Decided May 17, 1911.
Burglary — Notice of Appeal — Nunc Pro Tunc — Sentence — Jurisdiction.
Where the appellant was sentenced during the term of court following his conviction, and the order entered nunc pro tunc, and he did not file his notice of appeal until the following term of the court at which he was sentenced, his appeal must be dismissed for want of jurisdiction.
Appeal from the Criminal District Court of Dallas. Tried below before the Hon. Robt. B. Seay.
Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary.
The opinion states the case.
Baker Strong, for appellant.
C.E. Lane, Assistant Attorney-General, for the State.
This conviction was for burglary. It is made to appear from the record, in such manner as to be considered by the court, and by bill of exceptions, that appellant was convicted at what is termed the July term of the court, 1910. That term adjourned about the 1st of October without sentence being passed upon appellant. During what is termed the October term of the court appellant was sentenced. This occurred in December. During the following or January term, 1911, appellant filed a motion to set aside the sentence, because he had not been served with notice before the sentence at the October term of the fact that he would be sentenced, insisting that he had a right to have three days' notice of that fact in advance of the sentence nunc pro tunc. Notice of appeal was given at the January term after the court overruled the above motion. We deem it unnecessary to discuss the failure of the court to have appellant served with three days' notice prior to his being sentenced nunc pro tunc. He was sentenced and let that term of the court pass without giving notice of appeal. Notice of appeal, as before stated, did not occur until the January term, 1911. The jurisdiction of this court does not attach under such circumstances. In order that jurisdiction of this court may attach, notice of appeal must be given during the term in which sentence is pronounced.
Because the jurisdiction of this court did not attach in that the notice of appeal was given at a term subsequent to the sentence, the appeal will be dismissed.
Dismissed.