Pulliam v. Page
| Citation | 401 P.2d 530 |
| Decision Date | 21 April 1965 |
| Docket Number | No. A-13645,A-13645 |
| Parties | Bobby Jim PULLIAM, Petitioner, v. Ray H. PAGE, Warden, Oklahoma State Penltentlary, and the State of Oklahoma, Respondents. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. When a petition for writ of habeas corpus contains only matters which could have and should have been presented on proper appeal, after the appeal period has expired, writ will be denied.
2. Failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal and the appellate court has no discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute.
3. An appeal from a judgment and sentence in a criminal action may be taken as a matter of right, but the manner of taking same is a proper matter of legislative control, and the statute prescribing the manner in which the appeal can be taken is mandatory.
4. There must be a positive showing, other than the petitioner's contention, that he was deprived of the process of law, which must be supported by the record, for petition for writ of habeas corpus to lie.
Original proceeding in which Bobby Jim Pulliam seeks his release from the State Penitentiary by writ of habeas corpus. Writ denied.
Bobby Jim Pulliam, pro se.
Charles Nesbitt, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for respondents.
This is a petition for writ of habeas corpus, filed pro se. The Attorney General files, as his response, a demurrer to the petition, for the reason that all the matters specifically alleged therein as found for the issuance of the writ of habeas corpus are matters which could have and should have been presented on proper appeal to this Court. We agree with the Attorney General's position.
It is found that the petitioner was represented by counsel, did file his motion for a new trial, which was overruled, and gave notice of intent to appeal. Also, that petitioner was granted 45 days in which to prepare and serve casemade, which was not accomplished. Thereafter no further action was taken to perfect his appeal to this Court.
As stated in Samford v. State, 83 Okl.Cr. 134, 173 P.2: 749:
'A failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal, and the appellate court has no discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute.'
See also Pooler v. State, 85 Okl.Cr. 97, 185 P.2d 235; Howard v. State, 86 Okl.Cr. 289, 192 P.2d 297; Doyal v. State, 90 Okl.Cr., 108, 210 P.2d 680, and others not listed.
Petitioner failed to exercise his right, when he abandoned that appeal after...
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