TILLEY v. STATE

TILLEY v. STATE
1970 OK CR 50
468 P.2d 804
Case Number: A-15430
Decided: 04/08/1970
Oklahoma Court of Criminal Appeals

Appeal from the District Court of Pawnee County; O.S. Palmer, Judge.

Albert Lawson Tilley was convicted of Driving While Intoxicated, was sentenced to serve 15 days in the county jail, pay a fine of $200.00 and costs, and attempts to appeal. Dismissed.

Tony L. Waller, for plaintiff in error.

G.T. Blankenship, Atty. Gen., Max A. Martin, Asst. Atty. Gen., for defendant in error.

MEMORANDUM OPINION

BUSSEY, Judge.

¶1 This is an attempted appeal by Albert Lawson Tilley from the judgment and sentence rendered against him in the District Court of Pawnee County on the 19th day of May, 1969, for the offense of Driving While Intoxicated, assessing his punishment at imprisonment in the county jail for a period of fifteen days, a fine of $200.00, and costs. The Petition in Error was filed in this Court on the 26th day of June, 1969 38 days after the rendition of judgment and sentence.

¶2 Rule 29, Section 4(b) of the Court of Criminal Appeals provides in pertinent part:

"A petition in error must be filed with the clerk of this Court within thirty (30) days from the date judgment and sentence is rendered by the trial court * * *."

¶3 In paragraph two of the Syllabus of Robinson v. State, Okl.Cr., 462 P.2d 354, we stated:

"A failure to file a petition in error within the time provided by Rule 29, Section 4(b) of the Court of Criminal Appeals is jurisdictional and this Court will dismiss the attempted appeal on motion of the adverse party, or on its own motion."

¶4 In accordance with the rule of this Court and the authority above set forth, we are of the opinion that this appeal must be dismissed since this Court is without jurisdiction to entertain the same.

¶5 The appeal is accordingly dismissed, and the Clerk of this Court is directed to forthwith issue the Mandate.

BRETT, P.J., concurs.

NIX, Judge (dissenting).

¶1 After considering the question herein decided, at great length, I have come to the conclusion that a failure to file Petition in Error is not jurisdictional, but should be left to the Court's discretion to determine whether failure to file a Petition in Error within thirty days can be justified by showing good cause.