Quick v. City of Tulsa, PC--75--520

• Decision Date: 13 November 1975
• Docket Number: No. PC--75--520,PC--75--520
• Citation: 542 P.2d 961
• Parties: Loraletta Faye QUICK, Appellant, v. The CITY OF TULSA, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 961

542 P.2d 961

Loraletta Faye QUICK, Appellant, v. The CITY OF TULSA, Appellee.

No. PC--75--520.

Court of Criminal Appeals of Oklahoma.

Nov. 13, 1975.

Loraletta Faye Quick, appellant, was convicted of the offense of Outraging Public Decency; was sentenced to serve ninety (90) days in jail and assessed a fine of Three Hundred ($300.00) Dollars, with suspension of jail term, and appeals. Petition for post conviction relief is dismissed.

John Street, Tulsa, for appellant.

Richard Kallsnick, Asst. City Atty., Tulsa, for appellee.

OPINION

BRETT, Presiding Judge:

Appellant, Loraletta Faye Quick, hereinafter referred to as defendant, was convicted of the crime of Outraging Public Decency after a trial by jury in the Municipal Court of the City of Tulsa, Case No. 187727. In accordance with the verdict of the jury, she was sentenced to serve a term of ninety (90) days in jail and to pay a fine of Three Hundred ($300.00) Dollars. The jail term was suspended by the court.

This is the second time this defendant has sought appellate review by this Court of her Municipal Court conviction. An attempted appeal was dismissed by order of this Court on July 8, 1975, because of certain jurisdictional defects which appeared on the face of the petition in error. The matter is now presented to us in the form of a 'Petition for Post-Conviction Relief' and an 'Amendment to Petition for Post-Conviction Relief' wherein the defendant asserts that she is now entitled to appellate review of her conviction under one of two alternate theories: first, that the appeal time from this misdemeanor conviction should be computed from June 24, 1975, when the formal instrument reflecting the judgment and sentence was signed by the judge and filed; or, that we may review the merits of the case in an original post conviction proceeding.

We are without jurisdiction under either theory.

Defendant's trial was held on February 17, 1975. On that same day the jury returned a verdict of guilty and recommended the punishment stated above. Sentencing was set for February 20, 1975. A court minute, signed by the judge, reflects that on that date the defendant appeared with her attorney and was sentenced to pay a fine of Three Hundred ($300.00) Dollars and to serve a term of ninety (90) days in jail, the latter being suspended. The same minute shows that a motion for a new trial was filed on February 20. A later court minute, also signed by the judge, shows that notice of intent to appeal and a designation of record were filed on March 3, 1975. On June 20, 1975, the defendant attempted to perfect an appeal from the conviction by filing a petition in error in this Court. The petition in error was found fatally defective, and the appeal was dismissed by this Court on July 8, 1975. In the meantime, on June 24, 1975, a formal instrument reflecting the judgment and sentence of February 20, and so dated, was signed by the trial court and recorded. Then on July 21, 1975, the defendant filed in the trial court a motion to dismiss and set aside the judgment rendered against her upon the ground that she had been denied her right to appeal when the trial judge failed to execute and file a formal instrument of judgment and sentence with the Clerk of the Municipal Court of Tulsa. That motion was heard on August 6, and was overruled on the same day. On August 18, a notice of intention to appeal was filed, and on September 8 a petition for post conviction relief was filed in this Court, the amendment thereto being filed the following day.

The defendant contends that the time to perfect her appeal began to run from June 24, the date on which judgment and sentence was entered of record, and not from February 20, the date on which judgment and sentence was pronounced. The state which limits the time in which an appeal must be taken is 22 O.S.1971, § 1054, providing in part:

'In misdemeanor cases the appeal must be taken within one hundred twenty days after the judgment is rendered. In felony cases the appeal must be taken within six months after the judgment is rendered. . . .'

The construction of that provision has long been settled in this State; the time allowed 'after the judgment is rendered' is computed from the date judgment is pronounced by the trial court, not from the date a formal instrument reflective of that judgment is signed and entered upon the record. Brown v. State, Okl.Cr., 443 P.2d 118; Crawford v. State, 97 Okl.Cr. 147, 260 P.2d 416; and, Dunn v. State, 18 Okl.Cr. 493, 196 P. 739.

While it is entirely clear that the time to appeal runs from the date judgment is pronounced, the method of computing the authorized number of days, in the case of misdemeanor appeals, or months, in the case of felony appeals, has been the source of some confusion. It has come to be the general rule that when time is to be computed from a particular day or a particular event that day is excluded from the computation and the final day of the specified period is included. See Burnet v. Willingham Loan and T. Co.,282 U.S. 437, 51 S.Ct. 185, 75 L.Ed. 448; Rogers v. State, 85 Nev. 361, 455 P.2d 172. In Oklahoma this rule has been incorporated into statute, 12 O.S.1971, § 73; and incorporated in the Rules of this Court, 22 O.S.1971, Ch. 18, App., Rule 2.1, subd. C. That rule for counting the number of days within which an appeal must be perfected was followed in Oklahoma until the case of Jones v. State, Okl.Cr., 499 P.2d 482 (1972). In that case, the trial judge...