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Sewell v. State

Court of Appeals of Indiana
Dec 29, 2010
939 N.E.2d 686 (Ind. Ct. App. 2010)

Summary

holding that the defendant's notice of appeal was untimely and dismissing the appeal

Summary of this case from Alexander v. State

Opinion

No. 73A01-1005-CR-194.

December 29, 2010.

Appeal from the Shelby Superior Court; The Honorable Jack A. Tandy, Special Judge; Cause No. 73D02-0811-CM-1378.

Andrew M. Eads, Lux Lux, P.A., Shelbyville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


OPINION


Anthony Mark Sewell ("Sewell") was convicted in Shelby Superior Court of Class A misdemeanor battery and Class B misdemeanor criminal mischief. Sewell appeals and argues that the State failed to present sufficient evidence to support his convictions. The State cross-appeals and argues that this appeal should be dismissed because Sewell's notice of appeal was untimely filed. Concluding that this court lacks subject matter jurisdiction due to Sewell's failure to timely file a notice of appeal, we dismiss.

Facts and Procedural History

At the conclusion of a bench trial on October 19, 2009, Sewell was found guilty of and sentenced for Class A misdemeanor battery and Class B misdemeanor criminal mischief. On November 17, 2009, the trial court received a handwritten letter from Sewell requesting an appeal and notifying the court that he "may need" appointed appellate counsel. Appellant's App. On December 21, 2009, the trial court appointed appellate counsel for Sewell and granted him additional time to file a notice of appeal. Sewell's appointed appellate counsel filed a notice of appeal on January 5, 2009, nearly fifty days after Sewell's conviction. This appeal ensued.

We note that the pages of the Appellant's Appendix are not numbered, in contravention of Indiana Appellate Rule 51(C), which provides that "[a]ll pages of the Appendix shall be numbered at the bottom consecutively, without obscuring the Transcript page numbers, regardless of the number of volumes the Appendix requires."

Discussion and Decision

On cross-appeal, the State argues that this appeal must be dismissed because Sewell failed to timely file a notice of appeal. Indiana Appellate Rule 9(A)(1) provides that "[a] party initiates an appeal by filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry of a Final Judgment." The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal. State v. Hunter, 904 N.E.2d 371, 373 (Ind.Ct.App. 2009); App. R. 9(A)(5).

The record clearly shows that Sewell's letter to the trial court requesting an appeal was received within the thirty-day time limit imposed by Appellate Rule 9. However, the letter did not comply with the content requirements for a notice of appeal. Specifically, the letter did not: (1) specify whether the appealed judgment was a final judgment or an interlocutory order, (2) designate the court to which appeal was sought, (3) direct the trial court clerk to assemble the record, or (4) contain a request for a transcript. See App. R. 9(F). These significant, substantive deficiencies preclude us from concluding that Sewell's letter to the trial court was sufficient to preserve his right to appeal.

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 January 5, 2009 notice of appeal filed by Sewell's appellate counsel was untimely. While Sewell's conduct may qualify him to file a petition for permission to file a belated notice of appeal under Post-Conviction Rule 2, his handwritten letter to the court received November 17, 2009 is insufficient to preserve his timely right of appeal under Appellate Rule 9. We therefore dismiss this appeal for lack of subject matter jurisdiction.

Dismissed.

BAKER, C.J., and NAJAM, J., concur.


Summaries of

Sewell v. State

Court of Appeals of Indiana
Dec 29, 2010
939 N.E.2d 686 (Ind. Ct. App. 2010)

holding that the defendant's notice of appeal was untimely and dismissing the appeal

Summary of this case from Alexander v. State

In Sewell v. State, 939 N.E.2d 686 (Ind.Ct.App.2010), the trial court did not appoint appellate counsel within thirty days of the final judgment.

Summary of this case from B.G. v. Ind. Dep't of Child Servs. (In re Termination of the Parent-Child Relationship of J.G.)

In Sewell v. State, 939 N.E.2d 686, 687 (Ind.Ct.App.2010), another panel of this Court dismissed a defendant's appeal despite the trial court's receipt of a letter from the defendant within the thirty-day period and the trial court's decision to purportedly grant the defendant additional time to file a timely appeal under Appellate Rule 9.

Summary of this case from King v. State
Case details for

Sewell v. State

Case Details

Full title:Anthony Mark SEWELL, Appellant, v. STATE of Indiana, Appellee

Court:Court of Appeals of Indiana

Date published: Dec 29, 2010

Citations

939 N.E.2d 686 (Ind. Ct. App. 2010)

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