ILNews

COA: Trial judges can't expand timetable on filing appeal notice

Back to TopCommentsE-mailPrintBookmark and Share

State trial judges do not have the power to expand the appeal filing timetable outlined by Appellate Rule 9, the Indiana Court of Appeals cautioned today.

In the four-page ruling of Anthony Mark Sewell v. State of Indiana, No. 73A01-1005-CR-194, the three-judge appellate panel dismissed the case after the Indiana Attorney General’s Office filed a cross-appeal requesting dismissal because the appellant’s notice of appeal wasn’t filed in time.

Special Judge Jack Tandy in Shelby Superior Court found Sewell guilty Oct. 19, 2009, of misdemeanor battery and misdemeanor criminal mischief, and on Nov. 17 the trial court received a handwritten letter from Sewell requesting an appeal and notifying the court he “may need” appointed appellate counsel. The trial court appointed an appellate attorney on Dec. 21, and on Jan. 5, 2010, that new attorney filed a notice of appeal. In total, that filing came about 50 days after Sewell’s conviction.

While Sewell is challenging his convictions based on evidence sufficiency, the AG’s Office argued on cross-appeal that Sewell failed to timely file notice of appeal within 30 days of a final judgment as required under Indiana Appellate Rule 9(A)(1). Though Sewell’s handwritten letter met that timetable, it did not comply with the rule requirements that it designate to which court the appeal is sought, direct the clerk to assemble the record or request a transcript, or specify whether this was a final judgment or interlocutory order.

“These significant, substantive deficiencies preclude us from concluding Sewell’s letter to the trial court was sufficient to preserve his right to appeal,” Judge Paul Mathias wrote for the panel. “Moreover, although the trial court purported to grant Sewell additional time to file a notice of appeal, no provision of the appellate rules permits trial courts to expand the time limit prescribed by Appellate Rule 9. Because the trial court lacked jurisdiction to grant Sewell additional time to file his notice of appeal, the Jan. 5 (2010) notice of appeal filed by Sewell’s appellate counsel was untimely.”

While the appellate court noted that Sewell’s conduct may qualify him to file a petition for permission for a belated notice of appeal under Post-Conviction Rule 2, this current appeal is dismissed for lack of subject matter jurisdiction.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

ADVERTISEMENT