377 P.2d 845 | Okla. Crim. App. | 1963
Plaintiff in Error, E. M. (Pete) Bishop, hereinafter referred to as the defendant was charged by Information in the District Court of Tulsa County with the crime of Robbery with Eirearms; was tried, found' guilty, and punishment assessed at 8 years, in the Oklahoma State Penitentiary.
Defendant lodged his appeal in this court within the time prescribed by law, however, the Attorney General has filed a Motion to. Dismiss on grounds the casemade does not contain a copy of the formal judgment and sentence as required by law.
Upon checking the record, we find only a Journal Entry on pg. 555 of the casemade, which reads as follows:
“IN THE DISTRICT COURT WITHIN AND FOR TULSA COUNTY STATE OF OKLAHOMA
“Case called for sentence. State present by Gresham. Defendant present and represented by Malloy. Defendant sentenced to. eight years in State Pen. Defendant gives notice of intention to appeal. 30-10-5 given for appeal. Appeal bond set at $40,000.-00. J & S issued.
“Raymond W. Graham, Judge.”
In a recent decision of this Court, Greenwood v. State, Okl.Cr., 375 P.2d 661, the elements for a judgment and sentence,
“No particular language, or form of words, is necessary in rendering and recording a judgment of conviction in a criminal cause, but the term ‘judgment’ within the meaning of Title 22 O.S.A. § 1051 must be in writing and contain these recitations: (1) The date when judgment was rendered, (2) Against whom and for what offense, (3) That sentence was pronounced in accordance with the verdict; and, (4) The signature of the judge of said court.
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“A Journal Entry is not a judgment and sentence within the meaning of Title 22 O.S.A. § 1051, when it fails to contain any of the requisites as set forth [above].-”
As this instrument relied upon by defendant fails to state the crime of which the accused was found guilty of, or that sentence was pronounced in accordance with verdict, it does not contain the necessary elements as set forth by this Court in the Greenwood case, supra. Also, the journal entry states a formal Judgment and Sentence was issued, but it does not appear •in case made.
In order to sustain an appeal, a Judgment and Sentence must be sufficient in form in and of itself. 24 C.J.S. Criminal Taw § 1650, pg. 1009.
There being no valid judgment and sentence contained in the case-made, we follow the rule set in Smith v. State, Okl.Cr., 362 P.2d 113, (and numerous cases cited therein.)
“Where casemade does not contain formal judgment and sentence, the record cannot be considered even as a transcript and the appeal will be dismissed.”
For the above and foregoing reasons, the •motion to dismiss by the Attorney Gen-eral is sustained, and the appeal is hereby •dismissed.
