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379 P.2d 708

Miller v. State

Court of Criminal Appeals of Oklahoma

Decided February 27, 1963

Court of Criminal Appeals of Oklahoma · decided 1963-02-27

Cited by 7 later decisions — most recently December 1970

2 federal appellate · 4 state decisions

Key passage — most relied on by later courts

““3. A timely application for a case made or transcript at public ex pense must be filed in the trial court a sufficient length of time prior to the expiration of the time within which to appeal to the Court of Criminal Appeals in order to allow the trial court reporters sufficient time in which to prepare said case made. “4. An application for case made, forma pauperis, should be accompanied by supporting proof of poverty.””

quoted by 2 later decisions, including Miller v. District Court of Tulsa County, Williams v. Windham

““Honorable Kirksey Nix Presiding Judge, Court of Criminal Appeals State of Oklahoma Oklahoma 5, Oklahoma Re: Glenn J. Miller, #19602 Dear Judge Nix: Replying to your letter of December 27, 1962, regarding above mentioned subject. I have before me the file in that case, and it reflects the following: Judgment and Sentence entered on October 18, 1962, sentenced the defendant to 15 years for Robbery With Firearms After Former Conviction of a Felony on jury verdict. Motion for new trial was filed on the same date and was overruled and defendant was granted an extention of time for the purpose of making and serving a casemade. On December 17, defendant, through his counsel, obtained an order granting 30 additional days to make and serve a casemade, this 30 days beyond the initial time .allowed. This case was tried before Judge Leslie Webb, Supernumerary Judge. I contacted Judge Webb by telephone today, and he advised me that no request has been presented to him for a case-made at public expense. The defendant was represented at his jury trial by Amos Nichols, a member of the Tulsa Bar, who represented to me at the time I assigned the case to Judge Webb for trial that Miller was a long-time personal friend of his. Mr. Earl Trues-dell, an attorney of the Tulsa Bar, appeared with and for the defendant at the time of sentencing, filed a motion for new trial, and obtained the initial order for time to make and serve a casemade, and also obtained the or der extending time on December 17”

quoted by 1 later decision, including Miller v. State

Relies on Killian v. United States · Neal v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1963-02-27

View the full empirical analysis of this case →

BUSSEY, Presiding Judge.

¶1 On the 28th day of December, 1962, the petitioner, Glenn J. Miller, filed an application for a Writ of Mandamus, seeking an order of this Court directing the Honorable Judge Leslie Webb, District Court, Tulsa County, Oklahoma to enter an order authorizing the court reporter to prepare a case made at public expense in District Court Case #19602.

¶2 The record before us reflects that on October 18, 1962, petitioner was tried and convicted of the offense of Robbery with Firearms After Former Conviction of a Felony and sentenced to Fifteen (IS) Years in the Oklahoma State Penitentiary in accordance with jury verdict; and that, thereafter, the trial court overruled the petitioner’s Motion for a New Trial and pronounced judgment and sentence.

¶3 The petitioner, having given notice of his intention to appeal to the Court of Criminal Appeals, the trial court entered an order allowing the making and serving of a case made on or before December 17, 1962. Thereafter, no further extension of time was granted, nor was a request for a case made at public expense made of the trial court by the petitioner herein.

¶4 In view of the record, it is abundantly clear that the petitioner’s application for a case made at public expense must be denied and this Court is without authority to issue a Writ of Mandamus since it appears that no application was ever filed for a case made a public expense in the trial court prior to the application filed herein. Neal v. State, Okl.Cr., 355 P.2d 1071; 365 U.S. 824, 81 S.Ct. 710, 5 L.Ed.2d 701. Said application is a condition precedent to the issuance of an order by this Court directing the trial court to authorize the preparation of case made or transcript at public expense.

¶5 In the instant case, we observe that the petition in this cause'-was filed for the first time just prior to the expiration of time set by statute within which to perfect an appeal to this Court.

“Title 22, OSA, § 1054 provides .that in felony cases an appeal must be taken within six months (amended to three months in 1961) after judgment is rendered. This provision of the statute is mandatory, and must be strictly followed, and this court cannot entertain an appeal not perfected within such time.” Citations Omitted.

¶6 Under the statute above cited, while an accused has a statutory right to an appeal, it must be perfected within the time provided by law.

¶7 In passing we note, that a timely application for a case made or transcript at public expense must be filed in the trial court a sufficient length of time prior to the expiration of the time within which to appeal to this Court, in order to allow the Court reporters enough time to prepare a case made.

¶8 We further note that such application should be accompanied by supporting proof of poverty entitling petitioner to case made or transcript at public expense. Neal v. State, Supra.

¶9 For the reasons above set forth, we are of the opinion that the Writ prayed for should be, and the same is hereby, denied.

¶10 Writ denied.

NIX and JOHNSON, JJ., concur.
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