McVey v. State, 4 Div. 310
| Decision Date | 18 October 1955 |
| Docket Number | 4 Div. 310 |
| Parties | James Wilson McVEY v. STATE. |
| Court | Alabama Court of Appeals |
Page 926
v.
STATE.
V. Cecil Curtis, Phenix City, for appellant.
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
HARWOOD, Presiding Judge.
This appellant has been found guilty and sentenced under an indictment charging him with being a vagrant.
The judgment was entered on 7 December 1954, and defendant gave notice of appeal on that date. On 9 December 1954 the appellant filed a good and sufficient appeal bond.
On 5 January 1955 appellant filed a motion for a new trial, and on the same date the court entered an order continuing the motion for disposition within thirty days.
No further orders appear in connection with this motion for a new trial. It therefore became functus officio upon the expiration of thirty days from 5 January 1955.
[38 Ala.App. 328] On 6 July 1955 the transcript of the evidence was filed with the Circuit Clerk of Russell County more than six months after he had given notice of appeal on 7 December 1954.
It is obvious that the State's motion to strike the transcript is well taken and must be granted, since the transcript of the evidence must be filed within sixty days from the date on which the appeal is taken unless the time be extended by the trial court. Sections 827(1), 827(1a), 827(4), Title 7, Code of Alabama 1940; Watkins v. Kelley, 262 Ala. 524, 80 So.2d 247; Clark v. State, Ala.App., 82 So.2d 805.
The record proper is in all things regular.
This cause is therefore due to be affirmed, and it is so ordered.
Motion to strike transcript of evidence granted, and cause affirmed.
Affirmed.
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Moore v. Ashe, 8 Div. 986
...became discontinued and the order overruling the motion was of no effect. Clark v. State, 38 Ala.App. 480, 87 So.2d 669; McVey v. State, 38 Ala.App. 327, 82 So.2d 926. Since there was no judgment on the motion, there was no new point of departure from which the time for filing the transcrip......
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Rushing v. State, 6 Div. 675
...within six months. See Section 368, Title 15, Code of Alabama 1940; Clark v. State, 38 Ala.App. 480, 87 So.2d 669; McVey v. State, 38 Ala.App. 327, 82 So.2d 926; Relf v. State, 267 Ala. 3, 99 So.2d The motion for a new trial filed in this case having been discontinued, and thereby rendered ......