Duarte v. State, No. 2-678A180

Docket NºNo. 2-678A180
Citation182 Ind.App. 680, 396 N.E.2d 693
Case DateNovember 05, 1979

Page 693

396 N.E.2d 693
182 Ind.App. 680
Richard DUARTE, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 2-678A180.
Court of Appeals of Indiana, Second District.
Nov. 5, 1979.

Page 694

Earl N. Davis, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Rollin E. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

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.
                

[182 Ind.App. 681] 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 [182 Ind.App. 682] 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...

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4 practice notes
  • Wente v. State, No. 3-282A28
    • United States
    • Indiana Court of Appeals of Indiana
    • October 12, 1982
    ...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 to file a bela......
  • Fancher v. State, No. 2-281A44
    • United States
    • Indiana Supreme Court of Indiana
    • June 23, 1982
    ...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 correct errors has expired is ......
  • Junigan v. State, No. 3-382A49
    • United States
    • Indiana Court of Appeals of Indiana
    • December 20, 1982
    ...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 4 Junigan was ultimately granted an extension of time in which to file the record. However, an erroneously granted extension of time will......
  • McVea v. State, No. 2-379A62
    • United States
    • Indiana Court of Appeals of Indiana
    • December 19, 1979
    ...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 necessarily be i......
4 cases
  • Wente v. State, No. 3-282A28
    • United States
    • Indiana Court of Appeals of Indiana
    • October 12, 1982
    ...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 to file a bela......
  • Fancher v. State, No. 2-281A44
    • United States
    • Indiana Supreme Court of Indiana
    • June 23, 1982
    ...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 correct errors has expired is ......
  • Junigan v. State, No. 3-382A49
    • United States
    • Indiana Court of Appeals of Indiana
    • December 20, 1982
    ...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 4 Junigan was ultimately granted an extension of time in which to file the record. However, an erroneously granted extension of time will......
  • McVea v. State, No. 2-379A62
    • United States
    • Indiana Court of Appeals of Indiana
    • December 19, 1979
    ...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 necessarily be i......

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