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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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