SMITH v. STATE

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SMITH v. STATE
1980 OK CR 43
611 P.2d 276
Case Number: PC-80-186
Decided: 05/20/1980
Oklahoma Court of Criminal Appeals

ORDER REMANDING FOR ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

[611 P.2d 277]

¶1 An application has been filed in this Court seeking leave to file an appeal out of time in Pottawatomie County District Court Case No. CRF-78-368. Applicant presented a related post conviction application to the District Court, which entered an order reciting to the District Court was without authority to grant any relief on the application. While that proposition is undoubtedly correct in the abstract, it misconstrues present Oklahoma procedure regarding the appeal out of time remedy. The prior statutory appeal out of time remedy found at 22 O.S.Supp. 1965 § 1073 [22-1073] was repealed upon enactment of and has been subsumed within the Post Conviction Procedures Act, 22 O.S. 1971 § 1080 [22-1080] et seq.

¶2 See The Oklahoma Post Conviction Procedure Act, Lerblance, 41 OBJ 1683, 1684. Hence, the proper procedure

¶3 Additional materials and pleadings have been filed in this Court with regard to this case, including an Appellant's brief, filed by court-appointed counsel, and two applications pro se filed by appellant seeking withdrawal of the brief filed by counsel and extension of time within which to file replacement briefs. Given our views set out above, these materials and the issues raised by them are improvidently before the court.

¶4 Therefore, for all of the above and foregoing reasons, this cause is remanded to the District Court for additional proceedings consistent with this order.

¶5 WITNESS OUR HANDS, and the Seal of this Court, this 19th day of May, 1980.

TOM R. CORNISH, P.J.

TOM BRETT, J.

HEZ J. BUSSEY, J.

Footnotes:

1 In some instances it may be appropriate for the District Court to simply vacate the original judgment and sentence and impose a new judgment and sentence, so that the appeal time will begin to run anew.