Opinion
No. A-10776.
October 1, 1947.
(Syllabus.)
1. Appeal and Error — Time for Appeal in Misdemeanor Cases. In misdemeanor case an appeal may be taken within 60 days after the judgment is rendered. It is not necessary to secure an extension of time to cover this period.
2. Same. Where the defendant had 60 days to perfect his appeal, it is required that the same be filed within the 60 day period, where no extension is granted.
3. Same. Where the case-made has not been filed within the time prescribed by law, the Criminal Court of Appeals does not acquire jurisdiction, and the appeal will be dismissed on motion.
Appeal from County Court, Ottawa County; John H. Venable, Judge.
John Albert Pooler was convicted of driving a motor vehicle while under the influence of intoxicating liquor, and he appeals. Appeal dismissed.
A. L. Commons, of Miami, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Haskell A. Holloman, Asst. Atty. Gen., and Richard W. Smith, Co. Atty., Ottawa County, of Miami, for defendant in error.
Defendant, John Albert Pooler, was charged in the county court of Ottawa county with the crime of "driving a motor vehicle while under the influence of intoxicating liquor"; was tried, convicted and sentenced to pay a fine of $50 and costs, and has appealed.
A motion to dismiss the appeal has been filed by the Attorney General. The case was submitted on the record, and on the motion to dismiss. No briefs have been filed by the defendant, or by the state.
An examination of the record reveals that the judgment and sentence was entered on April 18, 1946, and on that date the execution of the judgment and sentence was stayed for a period of 60 days, for the preparation and service of case-made of appeal. No further extension of time was granted by the court. The case-made was signed and delivered on June 26, 1946, but the appeal was not filed with the clerk of this court until July 15, 1946. It is provided by Tit. 22 O. S. 1941, § 1054.
"In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed."
Under many decisions of this court, construing the above statute, the case-made was not filed within the time required by law, and for that reason, this court did not acquire jurisdiction under the facts presented in this case. McAdams v. State, 17 Okla. Cr. 740, 192 P. 428; Miller v. State, 41 Okla. Cr. 367, 273 P. 374; Buxton v. State, 41 Okla. Cr. 376, 273 P. 372; Logan v. State, 51 Okla. Cr. 448, 3 P.2d 748; Wimberly v. State, 59 Okla. Cr. 230, 57 P.2d 277; McKinsey v. State, 72 Okla. Cr. 59, 112 P.2d 1112; Bouziden v. State, 78 Okla. Cr. 387, 149 P.2d 99.
For the reason above stated, the appeal in this cause is dismissed.
JONES and BRETT, JJ., concur.