Application of Willits ( 1965 )

STRUCKMEYER, Vice Chief Justice.

On February 23, 1965, Roy David Willits filed in this Court a motion for delayed appeal, setting forth that he was sentenced on October 30, 1964, in the Superior Court of Pima County, Arizona, that he gave notice of appeal on the 29th day of December, 1964, by placing a notice in the United States mail. We referred the motion by minute order of March 2, 1965, to the Attorney General of the State of Arizona for a response. The Attorney General, in his response filed March 17, 1965, advised this Court that a notice of' appeal was placed in the United States mail by Willits on December 29, 1964, and received in the office of the clerk of the Superior Court of Pima County on December 30, 1964.

From Willits’ application and the Attorney General’s response, it is not clear whether the superior court ordered the appeal dismissed or whether the clerk has simply failed to forward the record on appeal pursuant to Rules of Criminal Procedure, 17 A.R.S. If the former, the superior court is without jurisdiction to order the appeal dismissed and its action is void. If the latter, the clerk of the superior court has no discretion and may only transmit the record in the manner and within the time as is by law provided. Application of Lopez, 97 Ariz. 328, 400 P.2d 325 (decision filed this day).

The clerk of the Superior Court of Pima County is ordered to transmit the record on appeal in conformity with Rule 347 et seq., Rules of Criminal Procedure, 17 A.R.S., and the Superior Court of Pima County is directed to take such action in furtherance of the appeal as is in such cases provided by law. Accordingly, the application for delayed appeal is denied.

LOCKWOOD, C. J., and BERNSTEIN, UDALL, and McFARLAND, JJ., concurring.