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State v. Johnson

Supreme Court of Arizona

December 14, 1954

The STATE of Arizona, Appellee, Cross-Appellant,
v.
Walter A. JOHNSON, Appellant, Cross-Appellee.

Page 1021

[78 Ariz. 212] George F. Macdonald, Phoenix, for appellant.

Ross F. Jones, Atty. Gen., and Robert C. Stubbs, Asst. Atty. Gen., for appellee.

UDALL, Justice.

By a direct information, containing two counts, Walter A. Johnson, defendant (appellant), was charged by the county attorney of Yavapai County with traffic violations punishable under the Motor Vehicle Code, Laws of 1950, 1st S.S. Ch. 3, §§ 54 and 55; now appearing as sections 66-156 and 66-157, A.C.A.1939, 1952 Cum.Supp. Upon entering pleas of 'not guilty' defendant was placed on trial and convicted by a jury of both reckless driving and of operating a motor vehicle while under the influence of intoxicating liquor. The court, after denying motions in arrest of judgment and for a new trial, adjudged him guilty and imposed a sentence of sixty to ninety days in the county jail on each count, the sentences to run concurrently. Thereafter the court found grounds for the issuance of a certificate of probable cause, and granted a stay of execution and released the defendant on bail pending a review by this court.

Defendant's Attempted Appeal

The following minute entry appears on the date of the sentencing:

'Comes now the defendant and gives notice of appeal in open court and files application for certificate of probable cause and for stay of execution, and affidavit of inability to pay for costs of reporter's transcript and record on appeal.'

From the record it appears that no notice of appeal in writing was ever filed by defendant.

Rule 422, Cr.Proc. (now appearing as section 44-2511, A.C.A.1939), provides:

'An appeal may be taken only by filing with the clerk of the trial court a notice in writing stating that the appellant[78 Ariz. 213] appeals from a judgment, order, ruling or sentence * * *.' (Emphasis supplied.)

From the days of the Howell Code (1864) until the present time, in this jurisdiction a notice of appeal in writing, filed with the clerk of the trial court has been required in order to perfect an appeal in criminal cases. In construing section 1866 of Revised Statutes 1887, to this same effect, we said:

'* * * It is elementary law that where the statute points out a particular mode for taking an appeal that mode must be strictly adhered to in order to confer jurisdiction upon the appellate court. It is obvious that giving notice in open court that appellant intends taking an appeal is an essentially different proceeding from filing such

Page 1022

notice with the clerk of the court. The word 'filing,' as used in the section quoted, can be construed only as requiring a placing or depositing with the clerk a written notice of intention of taking an appeal. * * *' Territory v. Hunter, 4 Ariz. 197, 36 P. 175. (Emphasis supplied.)

See also: Florez v. Territory, 14 Ariz. 343, 128 P. 49.

Since no legal or proper notice of appeal was given, it follows that we have no jurisdiction to entertain this appeal. The court therefore on its own motion-the state having failed to raise the ...


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