Duarte v. State
| Citation | 182 Ind.App. 680,396 N.E.2d 693 |
| Decision Date | 05 November 1979 |
| Docket Number | No. 2-678A180,2-678A180 |
| Parties | Richard DUARTE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Earl N. Davis, Indianapolis, for appellant.
Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Richard Duarte is attempting to appeal his conviction of entering to commit a felony. We Sua sponte dismiss the appeal.
The record reveals the following chronology of events:
August, 21,1975 Sentencing held
February 10,1976 Present counsel appointed for
purposes of appeal; Petition for
Permission to File Belated
Motion to Correct Errors filed and
granted; Belated Motion to Correct
Errors filed and overruled
Praecipe filed
May 24, 1976 Petition for Permission to File
Belated Motion to Correct Errors
filed; Belated Motion to Correct
Errors filed
June 6, 1976 Permission to File Belated Motion
to Correct Errors granted; Belated
Motion to Correct Errors
overruled
June 11, 1976 Praecipe filed.
October 27,1977 Petition for Permission to File
Belated Motion to Correct Errors
filed.
October 28, 1977 Permission to File Belated Motion
to Correct Errors granted; Belated
Motion to Correct Errors filed
and overruled.
November 3, 1977 Praecipe filed.
June 2, 1978 Petition to File Belated Appeal
filed with clerk of Supreme Court
and Court of Appeals.
June 7, 1978 Permission to File Belated Appeal
granted.
We hold that permission to file a belated appeal 1 granted in error does not necessarily justify consideration of the merits of the appeal. 2 In the case Sub judice, our jurisdiction was not otherwise timely invoked and our permission to file a belated appeal was granted in error. Under the circumstances of this case, we dismiss the appeal.
In granting permission to file a belated appeal, this court relies solely upon the averments in the petition. In his petition Duarte's appellate counsel alleged a motion to correct errors had been filed and overruled. 3 Counsel further alleged his offices were moved following the overruling of the motion to correct errors and the record of this case was inadvertently stored with the inactive files, resulting in counsel's failure to perfect the appeal within the prescribed time limitations. 4 Thus, pursuant to the petition before this Court, we could only assume the proceedings below were timely and correct with the exception of counsel's failure to timely appeal because of the inadvertent misplacement of the files of this case.
The record, however, reveals otherwise. It indicates appellate counsel had repeatedly been dilatory in the prosecution of this appeal. The inadvertent misplacement of the files of this case does not explain why counsel has taken over two years to prosecute this appeal. And, moreover, the procedures counsel has utilized in prosecuting this appeal have been incorrect.
Pursuant to P.C.R. 2, § 1, the trial court has authority to grant permission to file a belated motion to correct errors when "no timely and adequate motion to correct error was filed for the defendant." Since no timely and adequate motion to correct errors was filed in this case, the trial court properly granted permission to file a belated motion to correct errors on February 10, 1976. For purposes of P.C.R. 2, § 1, however, the trial court was thereafter without authority to entertain Duarte's subsequent petitions for permission to file a belated motion to correct errors. 5 The filing of supplemental or subsequent motions after the procedural time limitation for filing a motion to correct errors has expired is not provided for under our appellate or post-conviction rules, See VerHulst v. Hoffman, (1972) 153 Ind.App. 64, 286 N.E.2d 214, and will not alter or extend the time within which the praecipe and record of proceedings must be filed.
When Duarte failed to timely file the record with this court after the trial court overruled the belated motion to correct errors on February 10, 1976, he was relegated to the relief provisions of P.C.R. 2, § 2 requiring him to petition this Court for permission to file a belated appeal. P.C.R. 2, § 2(d) requires diligence in requesting permission to file a belated appeal. Since the petition for permission to file a belated appeal was granted under the mistaken belief Duarte had been...
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Wente v. State
...Jurisdiction is not reconferred on Wente by this Court's granting of Wente's petition to file the record late. In Duarte v. State (1979), Ind.App., 396 N.E.2d 693, 694, the second district stated that when this Court's jurisdiction was not otherwise timely invoked, this Court's permission t......
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Fancher v. State
...allows for the amendment of the motion to correct errors within the sixty (60) day time limit of Ind.R.Tr.P. 59(C), and Duarte v. State, (1979) Ind.App., 396 N.E.2d 693, which "The filing of supplemental or subsequent motions after the procedural time limitation for filing a motion to corre......
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Junigan v. State, 3-382A49
...N.E.2d 214, and will not alter or extend the time within which the praecipe and record of proceedings must be filed."Duarte v. State (1979), Ind.App., 396 N.E.2d 693 at 695.4 Junigan was ultimately granted an extension of time in which to file the record. However, an erroneously granted ext......
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McVea v. State, 2-379A62
...denied McVea's petition for extension of time to file the brief and properly granted the State's motion to dismiss. In Duarte v. State, (1979) Ind.App., 396 N.E.2d 693, this Court held that when the time limits for perfecting an appeal have not otherwise been met our jurisdiction will not n......