LEE v. STATE

LEE v. STATE
1972 OK CR 247
501 P.2d 883
Case Number: A-17392
Decided: 09/27/1972
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Kiowa County; Clarence W. Hunter, Judge.

Will Rogers Lee was convicted of the offense of In Actual Physical Control of a Motor Vehicle while under the Influence of Intoxicating Liquor, sentenced to three hundred sixty-five (365) days in the County Jail and a fine of Three Hundred Dollars ($300.00) and he appeals. Judgment and sentence modified to a term of sixty (60) days in the County Jail and a fine of One Hundred Dollars ($100.00), and affirmed. Modified and Affirmed.

William W. Talley, Hobart, for appellant.

Larry Derryberry, Atty. Gen., for appellee.

OPINION

BUSSEY, Presiding Judge:

¶1 Appellant, Will Rogers Lee, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Kiowa County, Oklahoma, for the offense of In Actual Physical Control of a Motor Vehicle while under the Influence of Intoxicating Liquor; his punishment was fixed at three hundred sixty-five (365) days in the County Jail and a fine of Three Hundred Dollars ($300.00), and from said judgment and sentence, a timely appeal has been perfected to this Court.

¶2 Briefly stated, the evidence at the trial adduced that Trooper Raper observed a car sitting in the roadway in the right-hand lane of U.S. Highway 83, approximately one mile north of Mountain Park, Oklahoma, with the motor running and the emergency flashers on. He approached the vehicle and found the defendant lying partially in and out of the vehicle. He testified that the defendant was unstable on his feet, his speech was slurred, his clothes were mussed and disorderly, and, in his opinion, the defendant was drunk. Defendant was transported to the County Jail, wherein a breathalyzer test was administered. The results of the test were .24 percent by weight of defendant's blood alcohol content.

¶3 The defendant did not testify, nor was any evidence offered in his behalf.

¶4 This cause was lodged in this Court on April 4, 1972. The brief of the defendant was due to be filed by May 4, 1972; however, no brief was filed, nor an extension of time in which to file a brief requested. Therefore, on June 23, 1972, by Order of this Court, the cause was Summarily Submitted for opinion in accordance with the rules of this Court.

¶5 We have consistently held that where the defendant appeals from judgment of conviction and no briefs are filed in support of the petition-in-error, this Court will examine the records only for fundamental error. If none appears of record, the judgment will be affirmed. Enoch v. Oklahoma City, Okl.Cr., 444 P.2d 856. We have carefully examined the record and reviewed the testimony and petition-in-error in the instant case and find no fundamental error. We are of the opinion that the punishment is excessive in view of the absence of evidence of aggravation. In the interest of justice, the judgment and sentence is hereby modified to a term of sixty (60) days in the County Jail, and a fine of One Hundred Dollars ($100.00), and as so modified, is affirmed.

¶6 Modified and affirmed.

BRETT and SIMMS, JJ., concur.