Rogers v. StateRogers v. State
- Reporters:
- , ,
- Before:
- Harwood
Rehearing
On Rehearing.
HARWOOD, Presiding Judge.In аppellant’s application for rehearing his counsel argues that the date from which we should reckon the time limits in reference to filing thе record in this court is 4 February 1957, the date on which thе motion for a new trial was overruled.
Counsel аrgues that judgment of sentence was entered оn 10 December 1956, and that *443date should govern in determining the date of judgment.
The record shows that a formal judgment of guilt was entered on 24 November 1956, аnd the court on that day deferred sentencing until 8 December 1956, to await the report of the рrobation officer. On 8 December 1956 the heаring on the application for probatiоn, and sentencing was continued to 10 December, on which date the •court formally imposed а sentence.
Appellant’s contention is without merit.
Appeals are statutory, аnd by Section 367, Title 15, Code of Alabama 1940, an appeal lies only from the judgment of •conviction.
The judgment referred to in Section 119, Title 13, Code оf Alabama 1940, in which it is provided that a motion for ■nеw trial must be requested within 30 days from the rendition of a judgmеnt, must be deemed to mean the judgment from which an аppeal is authorized. See Harper v. Stаte, 13 Ala.App. 47, 69 So. 302.
Application denied.
Lead Opinion
This appellant was adjudged guilty on 24 November 1956.
On 10 December 1956 he gave notice of appeal.
On 4 January 1957 a motion for a new trial was filed, and was set for hearing on 26 January 1957.
An amendment to the motion for a new trial was filed on 2 February 1957, and thе motion for a new trial as amended was heаrd and overruled on that day.
The transcript of the record was filed in the circuit court’ on 17 January 1957, and the entire record was filed in this court on 3 April 1957.
The Attorney General has filed a motion to strike this record because not timely filed.
The motion is well taken.
The motion for a new trial was not filed’ until 4 January 1957, some 41 days-after judgment. The motion, and orders, pursuant theretо, were therefore functus, officio, the lower court having lost jurisdiction to entertain such motion upon the expiration of 30 days from the date of judgment. Bullard v. State, 29 Ala.App. 117, 192 So. 430; Clark v. State, 38 Ala.App. 480, 87 So.2d 669.
We must therefore look tо the date of the notice of appeal, that is, 10 December 1956 in reckoning the time.
The trаnscript of evidence was timely filed in the circuit court, that is, within-60 days of the date of the noticе of appeal.
The record was not however filed in-this court until 3 April 1957, some 75 days-after the filing of the transcript of the record in the circuit сourt.
No request for extension of time for filing the rеcord was requested either in the court belоw, or in this court.
The motion of the Attorney General to strike the record is therefore well taken. Clark v. State, supra; Lane v. State, 38 Ala.App. 487, 87 So.2d 668.
Record stricken; appeal dismissed.