Roberts v. State , 505 P.2d 1332 ( 1973 )

OPINION

BLISS, Presiding Judge.

Appellant, Larry David Roberts, was charged, tried by a jury, and convicted in the District Court of Oklahoma County, Oklahoma for the misdemeanor offense of Possession of Controlled Dangerous Substance, Amphetamines; his punishment was fixed by the jury at a term of ninety (90) days in the county jail, and from said judgment and sentence, a timely appeal has been perfected to this Court.

This appeal was lodged in this Court on July 14, 1972, with the filing of a Petition-in-Error, the Original Record, and the trial transcript. The records of this Court reflect that no brief was filed in behalf of the Appellant, nor was an extension of time in which to file such a brief requested thereafter. On the 19th day of October, 1972, more than ninety days after the filing of the Petition-in-Error and the Original Record, the above-styled and numbered cause was summarily submitted for an opinion by order of this Court in accordance with Rule 1.9, which states that when briefs are not filed, or when an appearance is not made, the cause will be submitted and examined for fundamental error only.

This Court has consistently held that where the Defendant appeals from a judgment of conviction and no briefs are filed in support of the Petition-in-Error, this Court will examine the records for fundamental error only, and if no such error appears, the judgment and sentence will be affirmed. Hendricks v. State, Okl.Cr., 497 P.2d 425 (1972).

Further, it is settled law in Oklahoma that where such cases are assigned for summary decision by this Court without briefs having been filed, this Court cannot and will not act as counsel for the Appellant, hut will carefully search the record, evidence, and instructions for fundamental error only. Metheny v. State, Okl.Cr., 485 P.2d 776 (1971).

In that connection, we have carefully examined Appellant’s Petition-in-Error, the Original Record, and motions contained therein, the instructions, the transcript of the hearings and testimony on the trial, and the evidence in the case at bar and find neither fundamental nor prejudicial error which would require modification or reversal. The record reveals that the Defendant was afforded a fair and impartial trial by a jury, and that the evidence was sufficient to support that jury’s verdict.

It is therefore the opinion of this Court that the judgment and sentence is, and the same is hereby, affirmed.

BUSSEY and BRETT, JJ., concur.