457 P.3d 277 (Okla.App. 2020), F-2019-256, Cross v. State
|Citation:||457 P.3d 277|
|Party Name:||Jason Dean CROSS, Appellant v. The STATE of Oklahoma, Appellee.|
|Judge Panel:||DANA KUEHN, Vice Presiding Judge, GARY L. LUMPKIN, Judge, ROBERT L. HUDSON, Judge, SCOTT ROWLAND, Judge|
|Case Date:||January 28, 2020|
|Court:||Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma|
ORDER DENYING STATES MOTION TO DISMISS APPEAL AND RE-SETTING BRIEFING SCHEDULE
[¶1] The State of Oklahoma has filed a motion to dismiss this appeal from Appellants Judgment and Sentence, pronounced January 2, 2019, in Case No. CF-2017-15 in the District Court of Lincoln County. On the same day, Appellant filed a motion for new trial claiming the verdict was contrary to the law or evidence.1 On April 2, 2019, the District Court overruled Appellants motion for new trial. On April 11, 2019, within ten days of the order denying the motion for new trial, Appellant filed in the District Court a Notice of Intent to Appeal and Designation of Record. On June 5, 2019, Appellant filed his Petition in Error in this Court.
[¶2] The State contends Appellants Petition in Error was due to be filed in this appeal by April 2, 2019, but was not filed until June 5, 2019, and thus this appeal should be dismissed. The State argues that Rules 2.1(A)(1) and (A)(2), which discuss motions for new trial and their effect on appeal proceedings, do nothing to extend the time for filing a Petition in Error.2 Rules 2.1(A)(1) and (A)(2), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2020). The State argues that Rule 3.1(C) thus controls this matter and required that Appellants Petition in Error be filed by April 2, 2019, within ninety days of the date his Judgment and Sentence was imposed. Rule 3.1(C), Rules, supra . Case law cited by the State in support of its arguments includes Walker v. State, 1963 OK CR 14, 378 P.2d 783, and not for publication opinions issued by this Court.
[¶3] The State is correct that this Courts Rules do not currently specify if or how a motion for new trial affects the timing of the filing of the Petition in Error. However, Section 1054.1 of Title 22 of the Oklahoma Statutes specifically provides that "in the event a motion for new trial is filed in the trial court ... no appeal to the Court of Criminal Appeals may be taken until subsequent to the ruling by the...
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