Opinion
No. 29,772.
Filed April 22, 1959.
1. APPEAL — Belated Appeal — Prima Facie Showing of Merit — Statutes — Cause to Excuse Delay. — To successfully petition for belated appeal under sec. 9-3305, Burns' 1956 Replacement, there must be cause shown to excuse the delay and there must be a prima facie showing made of merit to the appeal. p. 336.
2. APPEAL — Belated Appeal — Confusion of Counsel as to Preparation of Appeal — Insufficient Excuse for Delay. — A misunderstanding between petitioner's local counsel and Indianapolis counsel as to which one was to prepare the necessary papers for perfecting the appeal is not sufficient to excuse the delay in failing to file the regular appeal within time. p. 336.
Jesse H. Harrell, petitioner, petitions for a belated appeal.
Petition denied.
John M. Caylor, of Indianapolis, and Thomas Seamon, of Vernon, for petitioner.
Edwin K. Steers, Attorney General, and Owen S. Boling, Assistant Attorney General, for respondent.
This is a petition for belated appeal under the provisions of Acts 1947, ch. 189, § 5, p. 625, being § 9-3305, Burns' 1956 Replacement.
The above statute was before this court in State ex rel. Casey v. Murray (1952), 231 Ind. 74, 106 N.E.2d 911, and at page 77 of 231 Ind., we said, "There must be cause shown to 1. excuse the delay, and there must be a prima facie showing made of merit to the appeal."
Petitioner requests permission to file a belated appeal from his conviction in the Jefferson Circuit Court because of the failure of his counsel to prepare an appeal within the time 2. allowed by the rules of this court after the overruling of his motion for a new trial. It is alleged in the verified petition filed herein that due to a misunderstanding between petitioner's local counsel and his Indianapolis counsel concerning which one was to prepare the necessary papers for perfecting the appeal, the time for filing expired without either the transcript or assignment of errors being filed, or a petition for extension of time within which to file the same being filed and granted. We do not believe this is sufficient to excuse the delay in failing to file the regular appeal within the time.
While the petition does not contain certified copies of all pleadings, orders and entries pertaining to the subject matter therein as required by Rule 2-35 of this court, it nevertheless appears from the allegations of the petition that there is an insufficient showing of merit to the appeal to justify the granting of a belated appeal.
For the foregoing reasons the petition is, therefore, denied.
Petition denied.
Jackson, J., not participating.
NOTE. — Reported in 157 N.E.2d 581.