ROSE v. STATE

ROSE v. STATE
1967 OK CR 50
425 P.2d 1000
Case Number: A-14009
Decided: 04/05/1967
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.

Gary Lee Rose was convicted of the crime of Forgery in the First Degree, and attempts to appeal. Attempted appeal dismissed, judgment and sentence affirmed.

James M. Robertson, Tulsa, for plaintiff in error.

G.T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

¶1 Gary Lee Rose, hereinafter referred to as the defendant, was charged in the District Court of Tulsa County with the crime of Forgery in the First Degree. He waived jury trial, plead guilty, and was sentenced to one (1) year in the Penitentiary. From that judgment and sentence he now attempts to appeal to this Court.

¶2 The State has filed a Motion to Dismiss, moving that this cause be dismissed for lack of jurisdiction.

¶3 It appears from the record that judgment and sentence was rendered on the 1st day of December, 1965. Under the new statute, the defendant was required to give written notice of his intention to appeal, and request for transcript, in open court or within ten days thereafter. After said written notice of intent to appeal and request for transcript is given, defendant would automatically have six (6) months from date of judgment and sentence to file his appeal in a felony case in this Court. Title 22 O.S.A. §§ 1054 [22-1054], 1060, effective May 19, 1965.

¶4 This Court has repeatedly held that an appeal may be taken as a matter of right from a judgment of conviction, but that the manner of taking such appeal is a matter of legislative control, and the statute prescribing the manner in which an appeal can be taken is mandatory. See Masters v. State, Okl.Cr., 408 P.2d 801. Inasmuch as no written notice of intent to appeal or request for transcript was given in the instant cause, this Court could not have acquired jurisdiction after December 10, 1965 (ten days after judgment and sentence) and the trial judge should have carried out the judgment at that time.

¶5 The Motion to Dismiss by the State is hereby Sustained, and the attempted appeal is dismissed.

NIX, P.J., and BRETT, J., concur.