Nard v. State , 412 P.2d 489 ( 1965 )

NIX, Judge.

Plaintiff in Error, Janie Nard, was charged by Information in the District Court of Oklahoma County with Grand Larceny. She was tried by a jury, found guilty, and her punishment assessed at Two Years in the Penitentiary. She made application for a suspended sentence, but was denied because of previous arrests and convictions. From that judgment and sentence, she attempts to appeal to this Court.

The State has filed a Motion to Dismiss alleging the casemade was not filed in this Court within the time prescribed by statute. Title 22, O.S.A. § 1054, states:

“ * * * In felony cases the appeal must be taken within three (3) months after the judgment is rendered: provided, however, in felony cases the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding six (6) months from the date of judgment. * ,* * ”

This is the pertinent part of the statute in force on the date of judgment and sentence in the instant case, December 10, 1964. At that time the trial judge granted defendant thirty days to make and serve casemade, ten days to suggest amendments, to be signed and settled on five days notice. Thirty days from December 10, 1964 would have extended the time to January 10, 1965, to make and serve casemade. Not until January 18, 1965 did defendant file an application for extension of time. On that date, which was late (and actually a nullity), the trial judge entered an order granting defendant "120 days from January 18, 1965 to make his appeal in this case".

This order extended the time to file said casemade in the Court of Criminal Appeals to May 18, 1965. This was the last day that the appeal could have been filed in our Court. The casemade, with petition in error, was not filed in our Court until May 19, 1965, one day too late.

This Court has ruled on this many times, as in the case of Nowlin v. State, Okl.Cr. 308 P.2d 668:

“Criminal Court of Criminal Appeals is without jurisdiction to entertain an appeal unless it is filed within time allowed by statute, or lawful extension thereof.” (Title 22, O.S.A. § 1054)

The above statute must be strictly followed, and this Court acquires no jurisdiction to determine an appeal on its merits unless it is lodged within the time fixed by section 1054, supra.

“Failure to file appeal in appellate court within time allowed by law is fatal to appeal, and appellate court has no discretion to hear and determine appeals on merits when they are not taken within time prescribed by this section.”

Mayo v. State, 96 Okl.Cr. 143, 250 P.2d 228; Doyal v. State, 90 Okl.Cr. 108, 210 P.2d 680; Madden v. State, 89 Okl.Cr. 203, 206 P.2d 244; Denney v. State, 87 Okl.Cr. 383, 198 P.2d 230; Clasby v. State, 87 Okl.Cr. 173, 196 P.2d 541; Haygood v. State, 87 Okl.Cr. 41, 194 P.2d 210; Brown v. State, 84 Okl.Cr. 115, 179 P.2d 478; Samford v. State, 83 Okl.Cr. 134, 173 P.2d 749; Stansbury v. State, 78 Okl.Cr. 206, 146 P.2d 137; Miller v. State, 78 Okl.Cr. 112, 144 P.2d 120; Lee v. State, 74 Okl.Cr. 358, 126 P.2d 94; Bullard v. State, 73 Okl.Cr. 238, 119 P.2d 870; Jones v. State, 58 Okl.Cr. 342, 53 P.2d 589; Lambe v. State, 27 Okl.Cr. 156, 225 P. 572; and Miller v. State, 19 Okl.Cr. 148, 197 P. 121.

And, further, in the case of Fleetwood v. State, 16 Okl.Cr. 675, 181 P. 157, stated:

“Where there was no extension, an appeal filed one day late would be dismissed.”

The defendant relies on an instrument in the back of the casemade, signed by the trial judge, which states:

“IN THE DISTRICT COURT OF OKLAHOMA COUNTY. STATE OF OKLAHOMA

STATE OF OKLAHOMA, PLAINTIFF.' VS. JANIE NARD, • DEFENDANT. __

No. 29948-Cr.

CERTIFICATE OF TRIAL JUDGE AS TO TIME OF FILING PETITION IN ERROR IN THE COURT OF CRIMINAL APPEALS

I, W. P. KEEN, the undersigned Supernumerary Judge assigned to the Dis- ■ trict Court of Oklahoma County, State of Oklahoma, Seventh Judicial District, before whom said cause was tried, hereby certify that said case-made was settled on the 10th day of May, 1965, and that the Defendant herein shall have until the 19th day of May, 1965, within which to file his Petition in Error in the Court of Criminal Appeals of the State of Oklahoma.

WITNESS my hand this 13th day of May, 1965, at Oklahoma City, Oklahoma.

M

W. P. KEEN

ASSIGNED TRIAL JUDGE

(seal)

ATTEST:

This is a civil form, and has no bearing in a criminal case. Any extension of time must be made by proper order of the trial judge within the time prescribed by law.

Any attempt of the trial court to extend the time for filing the petition in error and casemade in this Court, so as to permit them being filed herein after expiration of 120 days from the date of valid extension, is void; and where said petition in error and casemade are filed in this Court in compliance with an extra “certificate” signed by the trial judge after the 120 days allowed, the appeal will be dismissed.

It is, therefore, the order of this Court that the Motion to Dismiss filed by the State is sustained, and the attempted appeal is dismissed.

BUSSEY, P. J., and BRETT, J., concur.