NEELEY v. STATE

NEELEY v. STATE
1954 OK CR 139
277 P.2d 217
Case Number: A-12054
Decided: 11/10/1954
Oklahoma Court of Criminal Appeals

Appeal from the District Court, Oklahoma County, Glen O. Morris, J.

Frank M. Massad, Wayne E. Wheeling, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

POWELL, Presiding Judge.

¶1 Douglas J. Neeley Howard Lee Voegel and Billy Don Morgan were jointly charged in the district court of Oklahoma County with the crime of robbery with firearms. The defendants each waived a preliminary hearing, were bound over to answer the charge in the district court, and were admitted to bail.

¶2 Douglas J. Neeley, the appellant here, and Voegel, were arraigned in the district court on November 5, 1953, and entered pleas of not guilty, but on November 18, 1953 they withdraw their former pleas, entered pleas of guilty, and sentence date was set for November 23, 1953.

¶3 On the date set Douglas J. Neeley, hereinafter referred to as defendant, appeared in court and was sentenced to serve a term of seven years in the Oklahoma State Penitentiary. No notice was given and there was no order extending time to make and serve casemade. The time therefore expired on December 8, 1953. But a court minute recites that on December 3, 1953 there came on for hearing a motion for new trial, and motion to withdraw plea guilty, although no such motion appears in the transcript presented. The motions were overruled, and notice of appeal given, and there is a notation: "30-3-3 days allowed to make and serve casemade". Under the provisions of a later order filed, the defendant was granted until January 2, 1954 in which to make and serve casemade. There was no attempt made to serve casemade until February 3, 1954. Therefore, the appeal could not be by casemade, and the record was certified as a transcript.

¶4 The appeal being by transcript this court finds nothing for consideration that could form the basis for determining whether or not the trial court erred in refusing to set aside the judgment entered on a plea of guilty by the defendant, and permitting him to enter a plea of not guilty and being tried on the merits of the case. See the companion case of Voegel v. State, Okl.Cr., 277 P.2d 215, for more detailed treatment of the issues presented.

¶5 The judgment appealed from is affirmed.

JONES and BRETT, JJ., concur.