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

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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.

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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