The Indiana Court of Appeals dismissed a man’s appeal from the denial of his motion to correct error because he didn’t file his notice within 30 days of when the motion was deemed denied, which happened before the trial court actually ruled on the motion.
The trial court found Robert Bergstrom committed speeding. He challenged the finding and filed what the trial court construed as a motion to correct error Dec. 8, 2008. On June 7, 2009, the trial court ordered his counsel to file a “formal” motion to correct error within 30 days, which the attorney did. A hearing was held Nov. 5, 2009, but the trial court didn’t take any action on his motion until Feb. 5, 2010 – 92 days after the hearing.
Bergstrom filed his notice of appeal March 4, 2010, which is within 30 days of the trial court order, but his notice is untimely because that’s not the date it was deemed denied under Indiana Trial Rule 53.3(A), wrote Judge Paul Mathias in Robert C. Bergstrom, Jr. v. State of Indiana, No. 92A05-1003-IF-170. T.R. 53.3(A) says if a trial court fails to rule on a motion to correct error within 30 days after it was heard, the pending motion shall be deemed denied.
Bergstrom should have appealed by Dec. 7, 2009. Since he did not, his appeal was dismissed as untimely.