Preble v. State

240 Ind. 282 | Ind. | 1959

Landis, J.

Petitioner has filed in this Court verified petition for permission to take a belated appeal from his judgments of conviction for presenting a false claim and perjury for which he was sentenced respectively to 2-14 and 1-10 years’ imprisonment. The State of Indiana has filed response in opposition thereto.

It is the well settled law of this jurisdiction that before a belated appeal can be granted, sufficient cause must be shown to excuse the delay, and there must be a prima facie showing of merit to the appeal. See: Kirkland v. State (1956), 235 Ind. 450, 134 N. E. 2d 223; State ex rel. Casey v. Murray (1952), 231 Ind. 74, 106 N. E. 2d 911.

From the petition it appears petitioner, who was represented by an attorney, was desirous of taking a regular appeal from his judgments of conviction but the appeal was never initiated because of his failure to file praecipe for a transcript of the record.¹ Petitioner has not alleged that he was without counsel below or that his counsel was incompetent, nor has he given any reason in law why he should not be bound by his failure to take an appeal within the time provided by law.

Petitioner has alleged in the form of conclusions that the evidence below was “not sufficient to sustain a conviction” without setting out the facts or circumstances from which we can determine whether there is any merit to his attempted belated appeal. Further, it appears the response filed by the Attorney General has denied the allegations made by the petitioner.

We are unable to conclude that petitioner has made a sufficient showing either that he should be excused for the delay or that he has merit to his contemplated appeal. .

Petition denied.

Arterburn, C. J., and Bobbitt, J., concur. Achor, J., not participating because of illness. Jackson, J., not participating.

Note. — Reported in 163 N. E. 2d 32.

1 . See Rule 2-8 of the Supreme Court.