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Judges dismiss man's untimely appeal

December 9, 2011

The Indiana Court of Appeals rejected a man’s argument that even though his appeal was untimely, the court should still address his appeal because of “considerations of justice.”

Jeremy Phovemire was convicted of Class D felony domestic battery and Class A misdemeanor invasion of privacy on March 21, 2011. His trial counsel filed a notice of appeal with the trial court on April 21, 2011, 31 days after the entry of final judgment. Phovemire’s appointed appellate counsel filed a petition for permission to file a belated notice of appeal, which did not include a proposed notice of appeal. The trial court granted the petition May 11, 2011, but Phovemire’s attorney didn’t file the belated notice of appeal until 40 days later.

The COA determined it lacked subject matter jurisdiction because Phovemire didn’t timely file his belated notice of appeal. Phovemire didn’t argue that his belated notice of appeal was untimely, but argued that “considerations of justice require” the appellate court to address the appeal on the merits because his appellate attorney didn’t receive notice of the trial court’s ruling on his petition.

In Jeremy Phovemire v. State of Indiana, No. 02A05-1106-CR-304, the judges rejected Phovemire’s arguments, noting that he should have petitioned to the trial court for an extension of time to initiate his appeal, but he did not.

 

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