Stacy v State

Stacy v State
1927 OK CR 146
256 P. 63
37 Okl.Cr. 45
Decided: 05/17/1927
Oklahoma Court of Criminal Appeals

Syllabus.)

1. Appeal and Error Appeal in Misdemeanor to Be Filed in 120 Days. An appeal to this court lies from the judgment of conviction, and in a misdemeanor case the greatest length of time allowed for lodging the appeal in this court is 120 days from the date of the rendition of judgment.

2. Same Statutory Procedure for Appeal Mandatory. While the appeal may be taken by defendant as a matter of right from a judgment of conviction, the manner of taking and perfecting such appeal is a proper matter of legislative control, and the statute prescribing the manner in which an appeal can be taken is mandatory.

3. Same. A failure to file the appeal in the appellate court

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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.

Appeal from County Court, Cherokee County; Sanford Martin, Judge.

Rose Stacy was convicted of selling intoxicating liquor, and she appeals. Appeal dismissed.

J.D. Cox, for plaintiff in error.

Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, P.J. This is an attempted appeal from the county court of Cherokee county, wherein on the 17th day of October, 1925, a judgment of conviction was rendered in accordance with the verdict of a jury finding the defendant, Rose Stacy, guilty of the offense of selling intoxicating liquor, and fixing her punishment at a fine of $150 and imprisonment in the county jail for 30 days.

The Attorney General has moved to dismiss the appeal on the ground that the same was not filed in this court within 120 days from the date the judgment was rendered. An examination of the record discloses that the petition in error with case-made attached was not filed in this court until the 2d day of April, 1926, more than 120 days after the rendition of said judgment.

This being an attempted appeal from a judgment for a misdemeanor, the greatest length of time within which the appeal must be lodged in this court is 120 days from the date of the rendition of the judgment. Section 2808, Comp. Stat. 1921. The appeal to this court lies from the judgment. Section 2806.

An appeal may be taken by the defendant, as a matter of right, from a judgment of conviction, but

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the manner of taking and perfecting such appeal is a proper matter of legislative control. Waggoner v. State, 13 Okla. Cr. 715, 167 P. 237.

The statute prescribing the manner in which an appeal can be taken is mandatory, and a failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal. Green v. State, 7 Okla. Cr. 5, 120 P. 1037; Miller v. State, 19 Okla. Cr. 148, 197 P. 121.

There is no provision of law which vests this court with discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute. Howey v. State, 9 Okla. Cr. 453, 132 P. 499.

The petition in error and case-made not having been filed in this court within 120 days after the rendition of the judgment, this being a misdemeanor conviction, the motion of the Attorney General to dismiss the appeal must be sustained.