ROSS v. STATE

ROSS v. STATE
1972 OK CR 125
497 P.2d 442
Case Number: A-16972
Decided: 05/03/1972
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Oklahoma County; Clarence Mills, Judge.

Claude Eugene Ross, Jr., seeks Post-Conviction Relief. Affirmed.

James W. Bill Berry and Rick Chew, Oklahoma City, for appellant.

Curtis P. Harris, Dist. Atty., James R. McKinney, Asst. Dist. Atty., Oklahoma City, for appellee.

MEMORANDUM OPINION

SIMMS, Judge.

¶1 This is an appeal from Denial of Post-Conviction Relief in the District Court of Oklahoma County, Oklahoma, Case Number 35531, wherein the appellant was charged by information with the crime of Grand Larceny, After Former Conviction of a Felony. The records reflect at various times he was represented by retained counsel, Valdhe F. Pitman and Mac Oyler; and that the case was tried to a jury, the appellant found guilty and sentenced to a term of ten (10) years in the state penitentiary. An appeal from that conviction was later perfected but dismissed by the Appellant and the dismissal therein is the major ground for complaint in the instant case. Appellant complains that the dismissal of the appeal was unwitting on his part, however, the record in this case fails to bear out that contention.

¶2 We also note after reviewing the records and the pleadings in this case that the trial court made findings of fact and conclusions of law which findings of fact and conclusions of law are supported by the record and are adopted by this Court and appended hereto.

¶3 Since no briefs were filed in this case within the time provided by this Court's rules, this matter was summarily submitted for consideration on the record for fundamental or prejudicial error only. An examination of the record and the pleadings in this case indicates there is no fundamental or prejudicial error nor anything to indicate that the conviction is constitutionally infirm.

¶4 For the reasons herein stated, the trial court's denial of Post-Conviction Relief is affirmed, and Appellant is advised that he has now exhausted all of his State remedies.

BUSSEY, P.J., concurs.

BRETT, J., concurs in result.

Summary No. 7

IN THE DISTRICT COURT, OKLAHOMA COUNTY, OKLAHOMA

THE STATE OF OKLAHOMA,

                                Plaintiff,

vs.

CLAUDE EUGENE ROSS, JR.

_________________________,

                                Defendant.

))))))))))

DISTRICT COURT CASE NO. 35531

_______________________________________

COURT OF CRIMINAL APPEALS NO. ________

CITATION NO. __________________________________

POST-CONVICTIONS FINDINGS

(Title 22, O.S.Supp. 1970, #1080 [22-1080] et seq)

Original Charge: Grand Larceny After Former Conviction of a Felony.

Judgment and sentence: Tried to a jury. Verdict guilty punishment assessed at 10 years. Sentenced April 28, 1969, to confinement for ten years.

Application for Post-Conviction relief filed: September 2, 1971.

Response of District Attorney: Deny petition in all respects.

Was form authorized by Court of Criminal Appeals used? A. No.

Proceeding in Court of Criminal Appeals, if any: Defendant for himself on May 22, 1969, filed in this case a dismissal of appeal.

Is there a genuine issue of material fact? A. No.

Is an evidentiary hearing necessary? A. No.

Is the testimony of the Trial Judge material to such a hearing? A. No.

Findings of fact: This man with an able attorney of his own choice was tried to a jury, with results above noted, and dismissed any appeal.

Conclusions of law: Defendant has not been deprived of any constitutional or statutory right. Sam v. State, Okl.Cr., 425 P.2d 619. He dismissed his appeal and (as stated in his petition) has ever since been in custody. Harvey v. State, Okl.Cr. 444 P.2d 471.

Order: Denied.

Date: September 2, 1971.

(This order to be filed by the Clerk as a part of the minutes in this case).

(s) Clarence Mills

DISTRICT JUDGE

Court Reporter Present