State v. Miller

Annotate this Case

67 Wn.2d 59 (1965)

406 P.2d 760

THE STATE OF WASHINGTON, Respondent, v. GERALD E. MILLER, Appellant.[*]

No. 37491.

The Supreme Court of Washington, Department Two.

October 7, 1965.

Benjamin G. Hanson, for appellant. (Appointed counsel for appeal).

John G. McCutcheon and Eugene G. Olson, for respondent.


Defendant (appellant) was convicted of second degree burglary. He employed trial counsel. Judgment and sentence were entered January 29, 1964.

The record before us contains neither allegation nor proof of defendant's indigency except as hereafter noted. However, February 6, 1964 (eight days after judgment and sentence), the trial court appointed appellate counsel and also defendant's trial counsel "as co-counsel until the Statement of Facts is settled." June 15, 1964 the statement of facts was certified.

May 8, 1964 a written notice of appeal was filed in which it is stated that it was filed

according to the Notice of Appeal given in open court by the said indigent defendant on said date [January 29, 1964, the day judgment and sentence were entered.]

[1] Rule on Appeal 46 provides that

In order that the supreme court may secure jurisdiction of an appeal in a criminal cause: (a) A defendant *60 must, within thirty days after the entry of the judgment or order appealed from, file a notice of appeal in duplicate with the clerk of the superior court; ....

The mode supplied by the rules on appeal for securing appellate review by the Supreme Court is exclusive. Rule on Appeal 1.

The written notice of appeal was filed 71 days late. It is not sufficient to give this court jurisdiction. Assuming arguendo, that oral notice of appeal was given in open court on January 29, 1964, as alleged in the written notice, it too is insufficient to give this court jurisdiction. In Snohomish v. Patric, 56 Wn.2d 38, 350 P.2d 1009 (1960), this court held, in similar circumstances, that "Oral notice of appeal is without standing."

This court did not acquire jurisdiction; hence, this appeal must be dismissed. Beckstead v. Linden, 52 Wn.2d 892, 329 P.2d 1093 (1958).

It is so ordered.


[*] Reported in 406 P.2d 760.