Jones v. State, A--17490

• Decision Date: 21 June 1972
• Docket Number: No. A--17490,A--17490
• Citation: 499 P.2d 482
• Parties: Wilford Bennie JONES, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 482

499 P.2d 482

Wilford Bennie JONES, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17490.

Court of Criminal Appeals of Oklahoma.

June 21, 1972.

Rehearing Denied Aug. 2, 1972.

Syllabus by the Court on Rehearing

1. Computation of time for perfecting an appeal in a criminal case begins on the date of judgment and sentence.

2. For purposes of computing time in which an appeal in a criminal case must be perfected, the word 'month' is defined as a calendar month. (25 O.S.1971, § 23)

3. Court rules can neither abrogate nor modify substantive law, and Court rules should harmonize with, rather than nullify or modify, statutory provisions.

4. Rule 2.1, subd. C of the Court of Criminal Appeals is amended to read as follows: 'The date of judgment and sentence is counted as the first day of the appeal period.'

Appeal from the District Court of Oklahoma County; Robert L. Berry, Judge.

Wilford Bennie Jones was convicted of Possession of Marijuana, fined $3,500.00 and appeals. Dismissed.

Wilford Bennie Jones makes application for Petition for Rehearing. Rehearing denied.

Judd Black, Oklahoma City, Stephen Jones, Enid, for appellant.

Larry Derryberry, Atty. Gen., for appellee.

OPINION

SIMMS, Judge:

Wilford Bennie Jones, appellant herein, was charged in the District Court of Oklahoma County, Oklahoma, in Case No. CRF--71--1220, with the crime of Possession of Marijuana. He was tried by a jury, found guilty, and the jury assessed punishment at a fine of Three Thousand Five Hundred Dollars ($3,500.00). Appellant is currently free on an appeal bond in that amount.

A review of the original record filed herein by the appellant reveals two fatal jurisdictional defects, either one of which would require dismissal of this attempted appeal under the Rules of this Court.

Appellant's petition in error reflects that judgment and sentence was imposed on November 30, 1971. The Oklahoma Statutes governing the time for the taking of an appeal in this Court's Rules with regard to the computation of time for the taking of a felony appeal and the filing of appeal records require perfection of the appeal in a felony case and filing of the records in a felony case within six (6) months of the date of judgment and sentence. Perfection of the appeal in this case and the filing of the required record is dated May 31, 1972, therefore, this attempted appeal is one day out of time. Title 22, O.S.1971, § 1054; Rule 2.1, subd. C(2); and Rule 2.3, subd. C.

It is settled law that while an appeal to the Court of Criminal Appeals may be taken by defendant as a matter of constitutional right from any judgment rendered against him, that appeal must be taken in the manner prescribed by the Oklahoma Statutes and the Rules of this Court. Anderson v. District Court of Oklahoma County, Okl.Cr., 427 P.2d 437 (1967). We hold that these rules with regard to time limitations as we have held concerning other time limitations in the matter of perfecting an appeal, are jurisdictional and cannot be waived. Seabourn v. State, Okl.Cr., 493 P.2d 459 (1972).

We note further that the original record in this case contains no copy of the trial court's formal judgment and sentence. When an appeal is lodged in this Court from an alleged judgment of conviction, and the transcript or original record contains no copy of the formal judgment and sentence, this Court does not acquire jurisdiction of the appeal and the same shall be dismissed. Condo v. State, Okl.Cr., 389 P.2d 648 (1964); Baker v. State, Okl.Cr., 496 P.2d 1195 (1972).

It is, therefore, the opinion of this Court that the attempted appeal filed herein should be dismissed for the reason that this Court does not have jurisdiction. We commend to the appellant's consideration the provisions of 22 O.S.1971, § 1080 et seq. Appeal dismissed.

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

ON REHEARING

SIMMS, Judge.

Wilford Bennie Jones, appellant herein, has petitioned this Court for a Rehearing in the above styled and numbered case, wherein, by opinion dated June 21, 1972, found at 43 O.B.J. 1910 (1972), this Court dismissed appellant's purported appeal from a conviction in the District Court of Oklahoma County, Oklahoma, for the crime of Possession of Marijuana. The jury assessed punishment at a fine of $3,500.00.

Appellant's purported appeal was dismissed for the reason that said purported appeal was out of time and improperly perfected in that no judgment and sentence appeared in the original record.

We have elected to dispose of the petition for rehearing by opinion rather than by order, since a construction of our rules is one of the basis for our decision herein.

Petition for Rehearing denied.

Our original opinion indicated the time limits set out in our Court Rules are jurisdictional and cannot be waived. The judgment and sentence was imposed November 30, 1971, and by our reckoning, the original record filed May 31, 1972, was one day late. The computation was made on the basis of Rule 2.1, subd. C(2); Rule 2.3, subd. C, and as appellant's counsel points out, Rule 2.9, subd. A(2) found at Chapter 18, Appendix to Title 22, Oklahoma Statutes.

In each of the three cited sections, the following language appears:

'. . . within six months From the date of judgment and sentence.' (emphasis added)

Counsel for appellant contends it makes no difference whether the rule or statute reads 'from' or 'after,' that it is clear the records were filed on time. He also contends it is the usual practice in civil cases to exclude the first day in computing any time limit and that our Court Rules provide no other method for such computation.

We disagree, and observe from the number of appeals timely filed in this Court that others have no difficulty in understanding our Rules. Henceforth, however, to avoid any possible confusion, we define the word 'from' as used in the three abovecited rules, to be inclusive as to time. Thus, computation begins on the date of the judgment and sentence.

Appellant also complains this Court's Rules do not define the term, 'month'. We adopt, therefore, the definition found in the statutory definition section wherein a month is defined as a calendar month. 25 O.S.1971, § 23.

In light of the foregoing, it becomes even more clear that the original record was not timely filed.

We settled an identical fact situation more than fifty years ago in Gordon v. State, 12 Okl.Cr. 103, 152 P. 142 (1915) in granting the Attorney General's motion to dismiss an appeal based upon the fact that judgment and sentence was entered November 26, 1913, and the petition in error with casemade attached was filed May 27, 1914. There, as here, we said:

'. . . It was one day too late . . .'

We note, however, there is a conflict between a portion of one of the pertinent rules and the statute which governs the time for taking an appeal. The statute, 22 O.S.1971, § 1054, states in pertinent part:

'In felony cases the appeal must be taken within six months after the judgment is rendered.'

We have construed this statute and the phrase 'within six months,' in accord with Gordon, supra; in Walker v. State, Okl.Cr., 378 P.2d 783 (1963) wherein we stated the statutory time for taking an appeal in a criminal case 'runs from date of rendition of judgment.' (emphasis added) Thus, the date of judgment and sentence becomes the first day of reckoning and not the day after in the usual manner of computing time. It is to be noted also, there is a distinction between felonies and misdemeanors as to computation, since one is counted in months and the other in days, but both are computed...