Williams v. WindhamWilliams v. Windham
- Reporters:
- , ,
- Before:
- Johnson
On Aрril 24, 1964 the petitioner, Carl A. Williams, filed in this Court application for writ of mandamus, seeking an order of the Court directing the Hon. George Windham, judge of the district court of LeFlоre County, Oklahoma, to enter an order directing the court reporter to prepare a case-made at public expense in district court cаse No. 4604.
In that case this petitioner was convicted of the crime of larсeny of live stock, after former conviction of a felony, and sentenced to serve six years in the state penitentiary. Judgment and sentence was entered March 3, 1964.
In the original case petitioner filed his motion for new trial and gave notice of his intention to appeal to this Court, and asked for an extension оf time in which to prepare, serve and settle casemade for appeal. The trial court, after .entering an order overruling the motion for new trial, еntered an order granting the defendant an extension of thirty days in which to prepare casemade for appeal.
Title 12 O.S.A. § 958 provides that a casemade shall within fifteen days after the judgment is rendered, be served on the county attornеy, who shall have three days thereafter to suggest amendments, the case-made to be signed and settled on three days notice; and further provides that the trial court may extend such time, in his discretion. From the record before us, no further extension of time was granted in the case under consideration, nor was a request therefor made until May 6, 1964. Taking the most liberal view, conceding that defendant had thirty days aftеr the expiration of the fifteen days provided by statute, his time for serving casemade expired on April 18, 1964.
This Court has repeatedly held that while an appeаl may be taken by an . accused as a matter of right from a judgment of conviction, the manner in which an appeal can be taken is mandatory.
In Miller v. Oklahoma, District Court of Tulsa County, Okl.Cr., 379 P.2d 708, this Court said:
“A timely application for a case-made or transсript at public expense must be filed in the trial court a sufficient length of time priоr 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 casemade.”
Judge Windham duly filed a response to the pеtition herein, in which he states:
“Respondent further alleges and states that neither said defendant or his attorney applied to the district court of LeFlore County, Oklаhoma, in writing, or in any other manner, requesting that a casemade be prepаred at the expense of LeFlore County, Oklahoma.”
It has been the consistеnt holding of this Court that a casemade must be served on the county attorney within the time provided by the order of the trial court, and that a casemade for appeal not served upon counsel for the State within the time provided is a nullity. Hoofer v. State, 82 Okl.Cr. 237, 164 P.2d 247, 168 P.2d 313; Sloan v. State, Okl.Cr., 366 P.2d 967.
Furthermore, Tit. 20 O.S.A. § 111 reads in part:
“Provided further, however, that if, before a transcript of the notеs is ordered on application of the defendant or his attorney, the defendant shall present to the Judge his affidavit that he intends in good faith to take an aрpeal in the case and that such transcript is necessary to enable him tо prosecute the appeal, and that the defendant has not the meаns to pay for the same, the court may, at its discretion, order the transcript made at the expense of the county.”
This Court has held that under this provision of the stаtute it is necessary for one *767convicted of crime to make timely apрlication to the trial court for a transcript, or casemade, at the expense of the county, and make proper proof of his inability to pаy for the same before this Court will take action thereon.
As shown by the response on file, no application for casemade at the expense of the county was made by this petitioner.
In view of the record before us, it is abundently clear that the petitioner’s application to this Court for casemade at public expense must be denied, and that the Court is without authority to issue the writ of mandamus.
It is so ordered.
BUSSEY and NIX, JJ., concur.