DeCoteau v. State, s. 920280
| Court | United States State Supreme Court of North Dakota |
| Writing for the Court | MESCHKE; VANDE WALLE |
| Citation | 499 N.W.2d 894 |
| Parties | Alvin R. DeCOTEAU, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee. Civ. |
| Docket Number | Nos. 920280,920316,s. 920280 |
| Decision Date | 11 May 1993 |
Page 894
v.
STATE of North Dakota, Respondent and Appellee.
Alvin R. DeCoteau (argued), pro se.
Paul A. Temanson (argued), Minot, for petitioner and appellant.
Timothy C. Wilhelm (argued), Asst. State's Atty., Minot, for respondent and appellee.
MESCHKE, Justice.
We remand an appeal of the denial of application for post-conviction relief to the trial court to determine whether there was
Page 895
excusable neglect for a late-filed notice of appeal.On April 12, 1989, Alvin DeCoteau pled guilty to charges of theft of property and aggravated assault, under a plea agreement. The trial court sentenced DeCoteau to two consecutive five-year terms.
Acting pro se, DeCoteau filed a writ of habeas corpus on September 30, 1989, arguing that his sentence violated the terms of the plea agreement for two five-year terms to be served concurrently. The trial court denied the writ. On December 27, 1989, again acting pro se, DeCoteau filed an application for post-conviction relief, opposed by the State. Without hearing, the trial court issued an order denying DeCoteau's application.
DeCoteau appealed, arguing that the trial court committed error by not informing him of his right to apply for court-appointed counsel to assist him in the post-conviction proceedings. In State v. DeCoteau, 464 N.W.2d 605, 606-07 (N.D.1990), we held that "failure of the clerk to notify DeCoteau that assistance of counsel may be available and to inform him of the procedure for obtaining counsel affected DeCoteau's statutory right to such information and constitutes reversible error."
On remand, the trial court appointed counsel for DeCoteau. Arguing denial of due process, ineffective assistance of counsel, and that his plea agreement had been breached, DeCoteau again applied to the trial court for post-conviction relief. On September 10, 1992, after an examination of the record without a hearing, the trial court denied the application. DeCoteau appeals.
Section 29-32.1-14 of the Uniform Post-Conviction Procedure Act says, "[a] final judgment entered under this chapter may be reviewed by the supreme court of this state upon appeal filed ... by the applicant within ten days ... after the entry of judgment." In this case, the trial court issued its memorandum opinion and judgment on September 10, 1992. However, again acting pro se, DeCoteau filed...
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State v. Simek, Cr. N
...as provided by the rule. State v. Franck, 495 N.W.2d 60 (N.D.1993); State v. Guthmiller, 497 N.W.2d 407 (N.D.1993); DeCoteau v. State, 499 N.W.2d 894 The motion for a new trial was untimely, and the trial court lacked jurisdiction to grant it. It is unnecessary to consider the other issues ......
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McMorrow v. State, 930337
...The time limit for filing a notice of appeal is jurisdictional. State v. Guthmiller, 497 N.W.2d 407, 408 (N.D.1993); DeCoteau v. State, 499 N.W.2d 894, 895 The Uniform Post-Conviction Procedure Act contains no remedy for late filing of a notice of appeal. DeCoteau. In DeCoteau, however, we ......
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State v. Simek, Cr. N
...as provided by the rule. State v. Franck, 495 N.W.2d 60 (N.D.1993); State v. Guthmiller, 497 N.W.2d 407 (N.D.1993); DeCoteau v. State, 499 N.W.2d 894 The motion for a new trial was untimely, and the trial court lacked jurisdiction to grant it. It is unnecessary to consider the other issues ......
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McMorrow v. State, 930337
...The time limit for filing a notice of appeal is jurisdictional. State v. Guthmiller, 497 N.W.2d 407, 408 (N.D.1993); DeCoteau v. State, 499 N.W.2d 894, 895 The Uniform Post-Conviction Procedure Act contains no remedy for late filing of a notice of appeal. DeCoteau. In DeCoteau, however, we ......