Summary
In L'Aquarius v. Maynard, 634 P.2d 1310-11 (Okla. 1981), the Court held that a prisoner's petition in error must be received by the Clerk on or before the due date. Under 12 O.S. 1981 § 990[ 12-990], the statute in effect at the time of L'Aquarius, the mailbox rule was not recognized. The mailbox rule has been applicable to the commercial practice since Adams v. Lindsell, 1 B Ald 681. Under the rule, a contract becomes effective on the date acceptance is posted in the mail.
Summary of this case from Woody v. State, ex Rel. Dept. of CorrectionsOpinion
No. 56604.
September 29, 1981.
Appeal from the District Court, Cleveland County.
Jean L'Aquarius, pro se.
Jan Eric Cartwright, Atty. Gen., Oklahoma City, Jack Eliot, Norman, for appellee.
MEMORANDUM DECISIONAppellant, inmate in custody of the Department of Corrections, brings this pro se appeal in forma pauperis from the February 20, 1981, order of the District Court of Cleveland County, which, inter alia, denied to appellant the "use of marijuana as a sacrament." Petition in error was not forwarded to the Clerk of this Court until March 24, 1981, and not received by the Clerk until March 27, 1981. More than 30 days had passed between the entry of the order appealed from and the filing of the petition in error. Appellate proceedings concerning district court's judgments or appealable orders must be commenced by filing in the Supreme Court a petition in error within 30 days from date of final order or judgment appealed. Timely filing of the petition in error is jurisdictional and failure to file petition in error in a timely manner will result in dismissal of appeal. Warehouse Market, Inc. v. Berry, Okla., 459 P.2d 853 (1969).
Complaint is made by appellant L'Aquarius that he did not receive a copy of the complaint of district court order until March 20, 1981, and he was hampered in his efforts to timely file his appeal by lack of an adequate law library and alleges there were no inmate law clerks to assist him. Assuming these allegations to be true, we do not pass upon the question of whether or not they may excuse the late filing of a petition in error. Suffice it to say, examination of appellant's amended petition in error and his brief demonstrate appellant has clearly articulated his position, i.e., that refusal to permit the use of marijuana for religious purposes violates the guaranties of the First, Ninth, and Fourteenth Amendments to the Federal Constitution.
We find Appellant's argument unpersuasive under the rationale of Lewellyn v. State, Okla. Cr. 592 P.2d 538 (1979), together with the authorities cited.
Appellant's request for ancillary relief in the nature of injunction is Denied.
APPEAL DISMISSED. APPLICATION FOR INJUNCTION DENIED.
IRWIN, C.J., BARNES, V.C.J., and HODGES, LAVENDER, DOOLIN, HARGRAVE and OPALA, JJ., concur.