Com. v. Cobb
| Decision Date | 24 April 1987 |
| Docket Number | No. 86-CA-2694-MR,86-CA-2694-MR |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. Clarence Joe COBB, Jr., Albert Lee Davis and Louis Warren, III, Appellees. |
| Court | Kentucky Court of Appeals |
David L. Armstrong, Atty. Gen., Penny Warren, Asst. Atty. Gen., Frankfort, Wina B. Sutherland, Special Asst. Atty. Gen., Louisville, for appellant.
David O'Brien, Louisville, for appellee Cobb.
C. Thomas Hectus, Louisville, for appellee Davis.
G. Murray Turner, Louisville, for appellee Warren.
Before CLAYTON, MILLER, and WILHOIT, JJ.
This appeal is from an order denying a motion to reconsider an order which directed the appellant not to introduce certain hearsay evidence in the prosecution of the appellees on charges of trafficking in a controlled substance. The appellees filed a motion to dismiss the appeal, alleging the notice of appeal was not timely filed. We agree; therefore, we are constrained to dismiss the appeal.
The circuit court entered an order October 14, 1986, directing the appellant not to present evidence of any hearsay matters regarding statements by a deceased police detective who was involved in the investigation of the appellees. The RCr 12.06 docket notation was entered the same day. The appellant filed a motion to reconsider that order on October 23, 1986, which the circuit court denied October 30, 1986. The appellant filed a notice of appeal November 5, 1986, designating the October 30 order as the order on appeal.
This appeal is prosecuted pursuant to KRS 22A.020(4), which provides in pertinent part as follows:
An appeal may be taken to the Court of Appeals by the state in criminal cases from an adverse decision or ruling of the circuit court, but only under the following conditions:
(a) Such appeal shall not suspend the proceedings in the case.
(b) Such appeal shall be taken in the manner provided by the Rules of the Supreme Court.
This statute permits appeals by the prosecution from adverse pretrial interlocutory rulings. It appears to be quite broad and at first glance, would seem to permit the prosecution to appeal any pretrial interlocutory order which goes against its position on any issue before the trial court. Our Supreme Court, however, has construed this statute to permit an appeal of an interlocutory ruling only if the ruling "decides a matter vital to the Commonwealth's case." Eaton v. Commonwealth, Ky., 562 S.W.2d 637 (1978). This is a sensible interpretation of legislative intent which must have been to permit appeals only, for example, from such rulings as those suppressing evidence vital to the prosecution or granting a motion for change of venue. Cf. Evans v. Commonwealth, Ky., 645 S.W.2d 346 (1982). In the present case, the ruling vital to the prosecution's case was the order of October 14, suppressing evidence of the statements by the deceased officer and it is this order which was properly appealable. The ruling of October 30 did the prosecution no further damage.
RCr 12.04(3) establishes the time a notice of appeal must be filed in a criminal case. This rule provides as follows:
The time within which an appeal may...
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Parker v. Commonwealth, 2011–SC–000662–DG.
...(“[A] judgment subject to a CR 59 motion cannot be final until the motion has been ruled on.”). To the extent that Commonwealth v. Cobb, 728 S.W.2d 540 (Ky.App.1987) and similar cases conflict, they are overruled. However, resolution of the preceding issue is not dispositive. The record pro......
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Com. v. Blincoe, 1999-CA-002143-MR.
...permitted, but such filing does not suspend applicable time limits for the taking of other steps in the action. See Commonwealth v. Cobb, Ky.App., 728 S.W.2d 540, 541 (1987). For this reason, the trial court's dismissal of the action is hereby ALL CONCUR. ...
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Commonwealth v. Parker
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...the filing of the notice of appeal is mandatory and jurisdictional. Cobb v. Carpenter, Ky.App., 553 S.W.2d 290 (1977); Commonwealth v. Cobb, Ky.App., 728 S.W.2d 540 (1987). The appellate court lacks jurisdiction unless the notice is seasonably filed. Jurisdiction can not be conferred by con......