Opinion
No. A-10981.
May 4, 1949.
(Syllabus.)
1. Appeal and Error — Statute Prescribing Manner of Taking Appeal Mandatory. While an appeal may be taken by defendant as a matter of right from judgment of conviction, the manner of taking and perfecting such appeal is a proper matter of legislative control, and the statute prescribing the manner in which an appeal can be taken is mandatory.
2. Same — Failure to File Appeal Within Time Allowed by Law Fatal to Appeal. A failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal, and the appellate court has no discretion to hear and determine appeal on its merits when it is not taken within the time prescribed by statute.
3. Same — Time for Filing Appeal in Misdemeanor Cases — Dismissal of Appeal. In misdemeanor cases, the appeal must be taken within 60 days after the judgment is rendered, provided, however, that the trial court or judge may for good cause shown extend the time in which an appeal may be taken not exceeding 60 days. Tit. 22 O.S. 1941 § 1054[ 22-1054]. When the appeal is not filed within the time prescribed by said section, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.
Appeal from Court of Common Pleas, Oklahoma County; Glen O. Morris, Judge.
William Edward Madden was convicted of illegal possession of intoxicating liquor, and he appeals. Appeal dismissed and the cause remanded with directions.
Earl E. James, of Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
This is a purported appeal from a judgment and sentence pronounced against the defendant, William Edward Madden, in the court of common pleas of Oklahoma county on June 20, 1947, wherein the defendant was sentenced to pay a fine of $350 and serve 60 days' imprisonment in the county jail upon a conviction of the offense of illegal possession of intoxicating liquor.
The appeal from said judgment and sentence was filed 120 days after the rendition of the judgment and sen- in this court on December 1, 1947, which was more than tence, and therefore not within the period of time prescribed by law within which an appeal might be taken to this court from the judgment pronounced in a misdemeanor case. Tit 22 O.S. 1941 § 1054[ 22-1054].
The failure to file the appeal in the Criminal Court of Appeals within the time allowed by statute is fatal to the appeal; the appellate court has no jurisdiction and no discretion to determine the appeal in such a case. Bullard v. State, 73 Okla. Cr. 238, 119 P.2d 870; Estes v. State, 74 Okla. Cr. 77, 123 P.2d 288.
It is therefore ordered that the appeal be dismissed and the cause is remanded to the trial court with directions to enforce its judgment and sentence.
BAREFOOT, and BRETT, JJ., concur.