Erwin v. State , 43 Okla. Crim. 249 ( 1929 )

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Wn.ita county on a charge of having possession of one gallon of wine, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The judgment was rendered on February 5, 1927, at which time defendant was allowed 45 days within which to make and serve case-made, 10 days to suggest amendments, and to be settled and signed on 5 days' notice. Thereafter two further orders of extension of time within which to make, serve, and settle case-made were made by the court, but no order extending the time within which to file was ever made. Section 2808, Comp. Stat. 1921, provides that in misdemeanor cases an appeal must be taken within 60 days after judgment is rendered, and provides that for good cause shown the court may extend the time within which an appeal may be taken not to exceed 60 days additional. The appeal must be taken within the 60 days fixed by the statute, unless the court or judge makes an order extending the time. It has been held many times by this court that an order extending the time for making and serving case-made does not automatically extend the time within which to file the appeal. Holly v. State,16 Okla. Cr. 164, 181 P. 518, and cases therein cited; Wilson v. State, 24 Okla. Cr. 268, 217 P. 1057; Aubrey v. State,38 Okla. Cr. 271, 260 P. 783.

For the reason that the appeal was not lodged in this court within 60 days after the rendition of the judgment, and no order extending the time within which to take the appeal was made by the trial court, the appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.