An appeal by transcript from the District Court of Tulsa County; Robert D. Simms, District Judge.

Rush Orvel Nichols was convicted of the offense of Robbery with Firearms After Former Conviction of a Felony, and appeals. Affirmed.

Don E. Gasaway, Public Defender, for plaintiff in error.

Charles Nesbitt, Atty. Gen., of Oklahoma, for defendant in error.

BUSSEY, Presiding Judge.

¶1 Rush Orvel Nichols, hereinafter referred to as defendant, was charged by Information in the District Court of Tulsa County with the offense of Robbery with Firearms After Former Conviction of a Felony. He appeared with counsel on the 18th day of August, 1965, and entered a plea of Not Guilty. Thereafter, on October 15, 1965, his attorney, Mr. Elliott Howe, was allowed to withdraw as attorney of record and the Public Defender was appointed to represent him. The case was set for trial on the November docket and on the 4th day of November, 1965, the defendant, by and through his attorney, filed a Motion for Continuance and the same was overruled. The defendant then filed a waiver of his right to a jury trial and thereafter, on the 12th day of November, 1965, the defendant appeared in open court, with counsel, and withdrew his plea of Not Guilty and entered a plea of Guilty.

¶2 Thereafter, a timely appeal by transcript, provided at public expense, was perfected to this Court.

¶3 We have carefully examined the transcript in the instant cause and find that it is free of fundamental error. The judgment and sentence now complained of as being excessive is well within the range of punishment provided by law. We have repeatedly held that:

"In an appeal by transcript, the Court of Criminal Appeals may not modify sentence imposed within the statutory provisions for the crime charged, there being no record before the Court by which such modification could be justified."

Greathouse v. State, Okl.Cr., 366 P.2d 959.

¶4 For the reasons above set forth, the judgment and sentence appealed from is affirmed.

NIX and BRETT, JJ., concur.