Leigh v. Johnson

• Decision Date: 24 April 1968
• Docket Number: No. A--14602,A--14602
• Citation: 440 P.2d 375
• Parties: J. D. LEIGH, Petitioner, v. W. Lee JOHNSON, Judge of the District Court of Tulsa County, Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 375

440 P.2d 375

J. D. LEIGH, Petitioner, v. W. Lee JOHNSON, Judge of the District Court of Tulsa County Oklahoma, Respondent.

No. A--14602.

Court of Criminal Appeals of Oklahoma.

April 24, 1968.

Syllabus by the Court

1. S.B. 216, 1965 Session of Legislature, Session Laws, p. 118, was passed to simplify methods of taking appeals in criminal cases. 22 O.S.Supp.1965, § 1060.

2. 22 O.S.Supp. 1965, § 1060, was provided in order to more adequately provide for the proper administration of justice, and to better assure the guarantee of 'due process of law'.

3. When defendant lodges appeal of criminal case under § 1060, he assumes full responsibility for perfecting his appeal within time limit expressed in 22 O.S.Supp.1965, § 1054.

4. Unless petition in error with casemade, or transcript, is filed with clerk of the Court of Criminal Appeals within time limits specified in § 1054, Court of Criminal Appeals is without jurisdiction to consider appeal; and there is no authority for Court to extend appeal time period, except that contained in 22 O.S.Supp.1965, § 1073.

5. When trial court finds defendant to be indigent, casemade is ordered prepared by court order.

6. When appeal is lodged under § 1060, trial court is not required to specify time for making, serving and settling of casemade, as in civil cases.

7. After written notice of intent to appeal and request for casemade, or transcript, is given, defendant automatically has six (6) months from date of judgment and sentence to file his appeal in a felony case in this Court.

8. Defendant must act with reasonable diligence in ordering preparation of casemade by court reporter, or he may defeat his own appeal because of laches on his part.

9. An indigent defendant can waive his right to casemade and appeal at State expense either by his own election of choice, or by his subsequent actions which show him not to be indigent, the same as he can waive any other statutory or constitutional right, so long as such is knowingly and intelligently done.

10. Defendant in criminal case may waive any right, not inalienable, given him by statute or constitution which can be relinquished without affecting rights of others and without detriment to community at large; and such waiver may be made either by express agreement or by conduct, or by failure to insist upon right in seasonable time.

Original proceeding in which petitioner seeks writ of mandamus to require the district court of Tulsa County to grant casemade and appeal at State expense. Writ denied.

Jay Dalton, Tulsa, for petitioner.

Ted Flanagan, Asst. Dist. Atty., Tulsa County, for respondent.

BRETT, Judge.

This is an original proceeding in mandamus, in which petitioner requests this Court to direct the Honorable W. Lee Johnson, district judge of Tulsa County, to provide court appointed counsel and casemade at public expense in his appeal of district court case No. 22649, in which case petitioner was convicted for knowingly receiving stolen property, after former conviction of a felony. He was found guilty by a jury, which imposed an indeterminate sentence in the state penitentiary at McAlester, Oklahoma. The jury's verdict of guilty was returned on September 15, 1967, and judgment and sentence was passed September 19, 1967. The following morning, motion for new trial, notice of intent to appeal, and request for casemade at public expense were filed.

Public Defender Clifford E. Hopper initially represented petitioner at his preliminary hearing, but before the case was set for trial in the district court, Mr. Hopper's term of office--as public defender-expired, and he became engaged in the private practice of law in Tulsa. At that time petitioner made his own arrangements with Mr. Hopper to continue as his defense counsel.

Just prior to the date of trial, Mr. Hopper was offered a position on the District Attorney's staff, which was not scheduled to be assumed until after the date set for petitioner's trial. When the case came on for trial, the trial judge made specific inquiry of petitioner concerning his awareness of Mr. Hopper's prospective new position, and explained that he would appoint new counsel if petitioner desired. Petitioner acknowledged his awareness of the situation, and stated that he was most willing to have counsel continue, so Mr. Hopper proceeded with the trial. Petitioner was tried and convicted, after which Mr. Hopper was permitted to withdraw as counsel, and the trial judge appointed Public Defender Green to proceed with the appeal.

Petitioner's new counsel filed the motion for new trial, notice of intent to appeal, and request for casemade at public expense. Judgment and sentence was passed on September 19, 1967, and thereafter on September 29, the court considered the motion for new trial.

When petitioner appeared at that hearing, on September 29, he was represented by a different counsel, Mr. John D. Harris, whose services had been obtained through petitioner's own means. Counsel requested that petitioner be admitted to bail, and informed the court, 'Your Honor, at this time we desire not to be heard upon the motion for new trial, but merely stand on the record.' Therefore, the motion for new trial was overruled, and petitioner was admitted to $10,000 bail, which he met with a 'surety bond' obtained from a professional bail-bondsman.

During the time petitioner was free on bail, he was arrested on other criminal charges and incarcerated in the Tulsa County jail. On January 20, 1968 he mailed a letter to the trial judge in which he set forth the matter of his conviction and continued, 'Immediately thereafter I posted an appeal bond, but due to some unforeseen circumstances I am at this time unable to finance my appeal. At this time I am asking this Court to appoint me counsel and prepare me a casemade at State expense due to the fact that I am a poverty victim. Sincerely yours, J. D. Leigh.'

Petitioner's letter was not verified, but nonetheless the trial judge set the matter for hearing. Mr. Jay Dalton, who serves as appellate counsel for indigent defendants, was called to participate in that hearing on January 30, 1968, when petitioner's request was denied. Thereafter, petition was filed in this Court to mandamus the trial court to meet petitioner's request.

Assistant District Attorney Ted Flanagan filed a response and brief on behalf of respondent herein. The district attorney contends that petitioner was then represented by private counsel, and was granted bail--at his own request--pending his appeal; and, that no extension of time for preparation, settling, serving and certifying of the casemade has been requested--or granted--as provided for in Title 12 Okl.St.Ann. §§ 958, 960, as well as 22 Okl.St.Ann. § 1059. Consequently, since none of those statutory requirements have been met; and insofar as the time within which to comply with the statutes has passed; and since there is no authority to permit the preparation of the casemade at this late date, the trial court is without authority to order the preparation of the casemade, under the circumstances.

It should be noted: Title 22 Okl.St.Ann. § 1059, provides, in substance, that the casemade shall be settled in all respects As in civil cases.

Title 12 Okl.St.Ann. § 958 provides: '* * * the case so made, or a copy thereof, shall, within fifteen days after judgment or order is rendered, be served upon the opposite party, or his attorney * * *.'

It also provides three days for amendments, and three additional days for settlement and signing by the trial judge, after which it must be attested by the court clerk.

12 Okl.St.Ann. § 960 provides authority for the trial judge to extend, by order, the time to accomplish the statutory requirements for the preparation of casemade, as provided in § 958.

The Assistant District Attorney argues further, that Title 22 O.S.Supp.1965, § 1060, does not repeal or amend the provisions of the civil statutes in Title 12, supra, and, therefore, those sections must still be complied with.

We will first dispose of the District Attorney's proposition concerning the preparation, settling and certifying of the casemade, because that proposition has some bearing on the request contained in the petition now before this Court.

Title 22 O.S.1965 Supp. § 1060, was provided by the Oklahoma Legislature for the purpose of simplifying the appeal procedure in criminal cases. The Title to Senate Bill 216, 1965 Regular Session, Oklahoma Legislature, Session Laws, p. 118, reads as follows:

'An Act relating to criminal procedure; amending 22 O.S.1961, §§ 1051, 1054, as amended, and 1960; providing or corrective jurisdiction of certain cases by Court of Criminal Appeals; increasing minimum time for taking appeals; Simplifying methods of taking appeals in criminal cases; providing for severability; and declaring an emergency.' (Emphasis added.)

It should be observed, when the new § 1060 was provided all reference to 'Procedures Civil' was eliminated. The Earlier section provided that appeals of criminal cases may proceed by casemade and petition in error, and continues:

'* * * in all respects and with all the rights, as provided in 'Procedure, Civil,' and the summons in error shall be served upon the Attorney General, unless the same is waived as in other cases. * * *'

By striking all reference to the 'civil procedure', i.e., 12 Okl.St.Ann. §§ 958, 960, the time requirements for preparation of the casemade, and the need for extension thereof, was eliminated; and to that extent, at least, those sections were amended by operation of statutory requirement. This procedural change was considered necessary for the reason that many appeals--even after the petition in error and casemade had reached this Court--were being denied, because frequently the trial court's extension order provided additional time only for preparation of casemade under Title 12, but did not also extend the time for lodging the appeal...