Nard v. State

• Citation: 1965 OK CR 158,412 P.2d 489
• Decision Date: 08 December 1965
• Docket Number: No. A--13699,A--13699
• Parties: Janie NARD, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 489

412 P.2d 489

Janie NARD, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--13699.

Court of Criminal Appeals of Oklahoma.

Dec. 8, 1965.

Rehearing Denied April 4, 1966.

Syllabus by the Court

1. Title 22, O.S.A., § 1054, in effect at the time of judgment and sentence in this cause, states: In felony cases the appeal must be taken within (3) three 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 (6) six months from the date of judgment.

2. Court of Criminal Appeals is without jurisdiction to entertain an appeal unless it is filed within time allowed by this section, or lawful extension thereof.

3. 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 law.

4. Where there was no valid extension, appeal filed one day late would be dismissed.

5. Civil certificate form showing time of filing petition in error in the Court of Criminal Appeals is a nullity, and has no bearing on extending the time in criminal cases.

6. Any attempt of the trial court to extend the time for filing the petition in error and casemade in Court of Criminal Appeals, so as to permit them being filed therein 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 by proper order, the appeal will be dismissed.

Appeal from the District Court of Oklahoma County, W. P. Keen, Supernumerary Judge.

Janie Nard was convicted of the crime of Grand Larceny, and attempts to appeal. Dismissed.

Judd Black, Oklahoma City, for plaintiff in error.

Hugh Collum, Asst. Atty. Gen., for defendant in error.

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 '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.'

to determine an appeal on its merits unless it is lodged within the time fixed by section 1054, supra.

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. 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 District 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.

/s/ _ _

W. P. KEEN

ASSIGNED TRIAL JUDGE

(seal)

ARREST:

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 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.

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.

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

ON REHEARING

PER CURIAM.

This cause coming on for Re-hearing, and the Court being fully advised in the premises, finds that:

This cause was filed in this Court on May, 19, 1965; and after numerous delays, plaintiff in error's brief was filed on October 4, 1965. The Attorney General filed a Motion to Dismiss on November 12, 1965, and oral argument on the motion was held November 17, 1965. The attorney general argued that this Court is without jurisdiction due to plaintiff in error's failure to properly perfect her appeal. The state's contention was that the petition in error and casemade were not filed within the time provided by statute. On December 8, 1965, this Court handed down its opinion sustaining the attorney general's motion to dismiss the appeal, cited as Nard v. State, Okl.Cr.

On December 22, 1965, plaintiff in error filed a petition for re-hearing, in which it was requested that the decision of the Court be withdrawn, in that it was based upon an erroneous fact. In said petition for re-hearing, plaintiff in error's counsel recited as follows:

'Therefore it is positively pointed out that both the application and the dual order of January 18, 1965, extending the time to serve the casemade and to perfect the appeal were both timely made, and thereby extended the time until May 17, 1965. That said joint orders are set forth on page 245 of the casemade, and are as follows:

'IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED, by the court that the defendant is allowed an additional time of 120 days to from January 18, 1965, in which to make and serve case-made on appeal, the plaintiff to have three days thereafter in which to suggest amendments and the same to be signed and settled upon three days notice in writing by either party.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED BY the court that the defendant is granted an additional 120 days from January 19, 1965 to make his appeal in this case."

This Court granted plaintiff in error's request and set the matter down for oral argument a second time. At that hearing, plaintiff in error continued to maintain that the appeal was properly before this Court. And the Attorney General continued to maintain the position that the Court was without jurisdiction to further consider this matter, as it was filed out of time.

At this second hearing, plaintiff in error requested...