LaReau v. Reincke

• Decision Date: 25 November 1969
• Citation: 158 Conn. 486,264 A.2d 576
• Court: Connecticut Supreme Court
• Parties: Joseph D. LaREAU v. Frederick G. REINCKE, Warden, Connecticut State Prison. Edward M. GEER v. Frederick G. REINCKE, Warden, Connecticut State Prison. Allen G. GREEN v. Frederick G. REINCKE, Warden, Connecticut State Prison.

Page 576

264 A.2d 576

158 Conn. 486

Joseph D. LaREAU v. Frederick G. REINCKE, Warden, Connecticut State Prison.

Edward M. GEER v. Frederick G. REINCKE, Warden, Connecticut State Prison.

Allen G. GREEN v. Frederick G. REINCKE, Warden, Connecticut State Prison.

Supreme Court of Connecticut.

Nov. 25, 1969.

John D. LaBelle, State's Atty., for appellee (defendant) in each case.

Richard R. Stewart, Special Public Defender, for appellants (plaintiffs in the first and second cases).

Donald Holtman, Special Public Defender, for appellant (plaintiff in the third case).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

HOUSE, Associate Justice.

These three cases, although unrelated, are considered together because of the identity of the issues presented by the defendant's motion, in each case, to dismiss the plaintiff's appeal to this court from the denial by the Superior Court of a petition for a writ of habeas corpus.

In each case the plaintiff had been convicted of a crime and thereafter instituted habeas corpus proceedings to obtain his release from prison. In each case the application for the writ was denied, and each plaintiff, pursuant to § 52-470 of the General Statutes, obtained from the judge before whom his case was tried the certification which that statute requires as a prerequisite for taking an appeal to this court from the denial of his habeas corpus petition. ¹ After obtaining certification, each of the plaintiffs filed an appeal to this court. In each case, the defendant filed a motion to dismiss the appeal for lack of jurisdiction on the ground that the plaintiff had not filed his appeal within twenty days from the issuance of the notice of the rendition of judgment as required by Practice Book § 601, as amended. ²

In the Geer case, the judgment denying the plaintiff's habeas corpus petition was rendered on January 20, 1969. His petition for certification pursuant to § 52-470 of the General Statutes was filed with the clerk of the Superior Court on January 27, 1969, and certification was granted on February 3, 1969. On March 3, 1969, Geer filed his appeal. Thus, the appeal was filed forty-two days after the decision in the habeas corpus proceeding and twenty-eight days after his petition for certification was granted. The defendant's motion to dismiss the appeal was filed over six months later, on September 19, 1969.

In the LaReau case, judgment was rendered on November 4, 1968. On November 12, 1968, the plaintiff's petition for certification was granted and filed with the clerk of the Superior Court. His appeal was filed on November 29, 1968, twenty-five days after the judgment and seventeen days after the petition for certification was granted. The defendant's motion to dismiss this appeal was filed on September 19, 1969.

In the Green case, judgment denying the plaintiff's petition for habeas corpus was rendered on May 28, 1969. On June 9, 1969, Green filed his petition for certification. It was granted on June 17, 1969, and on June 30, 1969, he filed his notice of intention to appeal. See Practice Book § 666. Thus, his notice of intenion to appeal was filed thirty-three days after the decision of the Superior Court denying his petition for habeas corpus. Again the defendant's motion to dismiss was filed on September 19, 1969. It should be noted in the case of Green that although his petition for certification was filed in the office of the clerk of the Superior Court on June 9, twelve days after the judgment, the tenth day after the judgment fell on a Saturday, when the clerk's office is closed. Practice Book § 325, as amended. That section also provides that, if the last day for filing any matter falls on a day when the clerk's office is closed, the last day for filing shall be the next business day on which that office is open. The rules of this court contain a similar provision. Practice Book § 664. In these circumstances, we conclude that Green's petition for certification was not untimely filed with the clerk of the Superior Court.

The defendant's three motions to dismiss these appeals on jurisdictional grounds and the similar factual situations of the three appeals raise important questions with respect to appellate jurisdiction and procedure. Section 601 of the Practice Book, except in circumstances not relevant here, provides that an appeal to this court shall be filed within twenty days 'from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken.' A decision on the defendant's motions to dismiss requires a consideration of whether the failure to file an appeal within the twenty-day time provision of § 601 deprives this court of jurisdiction to hear the appeal and thereby renders any late appeal vulnerable to a motion to dismiss for lack of jurisdiction. Second, it prompts a consideration of the effect of the certification requirement of § 52-470 of the General Statutes on the time provision of § 601 for filing appeals. The statute makes the issuance of the certificate a condition precedent to a right of appeal for one convicted of a crime who applies for habeas corpus to obtain his release and is denied it in the trial court. See United States ex rel. Carrono v. Richmond, 279 F.2d 170, 172 (2d Cir.); United States ex rel. Saunders v. Reincke, 203 F.Supp. 668, 669 (D.Conn.); United States ex rel. Saunders v. Richmond, 194 F.Supp. 670, 672 (D.Conn.). As we have noted, in each case the plaintiff filed his appeal more than twenty days after notice of the rendition of the judgment from which he seeks to appeal. Geer also filed his appeal more than twenty days after his petition for certification was granted. LaReau and Green both filed their appeals within twenty days after their respective petitions for certification were granted.

Section 697 of the Practice Book provides for motions to dismiss, such as those filed by the defendant in these cases, whenever it is claimed that an appeal should be abated or dismissed. ³ It expressly requires that a motion to dismiss for failure to file papers within the time allowed be filed within ten days after the filing of such papers, but it permits a motion based on a lack of jurisdiction to be filed at any time. Because in none of the cases was a motion to dismiss filed within ten day after the filing of the appeal, the defendant must rely on his assertion that, since the appeals were not taken within twenty days after notice of the judgment appealed from, this court lacks jurisdiction to entertain them. The primary question for determination therefore is whether in any event a failure to comply with the twenty-day limitation provided in Practice Book § 601 for taking an appeal deprives this court of jurisdiction to hear it. In our opinion it does not.

Although the term is sometimes loosely used, 'jurisdiction' in proper usage is the power in a court to hear and determine the cause of action presented to it. Brown v. Cato, 147 Conn. 418, 422, 162 A.2d 175; Mazzei v. Cantales, 142 Conn. 173, 175, 112 A.2d 205; Shelton v. Hadlock, 62 Conn. 143, 151, 25 A. 483.

' Appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. Thus, the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory or constitutional provisions in which it has its source.' 4 Am.Jur.2d 535, Appeal and Error, § 4. The twenty-day period prescribed by Practice Book § 601 is fixed by a rule of this court. In is not a constitutionally or legislatively created condition precedent to the jurisdiction of this court. The source of the authority for the adoption of the rule lies in the inherent right of constitutional courts to make rules governing their procedure. Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49; State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 232, 140 A.2d 863, 69 A.L.R.2d 394. See also General Statutes § 52-264, which provides: 'The judges of the supreme court shall make such orders and rules as they deem necessary concerning the practice and procedure in the taking of appeals and writs of error to the supreme court * * *.' We find no support whatsoever in this state's 'sources' of appellate jurisdiction for the defendant's contention that the late filing of an appeal deprives this court of jurisdiction to hear it.

Nor do the few cases which have considered the problem support the contention of the defendant that the late filing of an appeal to this court is a jurisdictional defect. In Sackett v. Carroll, 80 Conn. 374, 68 A. 442, the appellee claimed for the first time in his appeal brief that the appeal should not be entertained because it was not taken within the time then prescribed by the General Statutes. The court replied (p. 376, 68 A. p. 443): 'This claim cannot be supported. The irregularity complained of is not jurisdictional. It is at the most but a defect in the process of appeal, which does not render it void, and which could only have been taken advantage of by plea in abatement. Spencer v. Broughton, 77 Conn. 38, 41, 58 A. 236; In re Shelton Street Ry. Co., 70 Conn. 329, 39 A. 446; Stillman v. Thompson, 80 Conn. 192, 67 A. 528.' See also State v. Boucher, 119 Conn. 436, 441, 177 A. 383.

Primarily on the basis of Sackett v. Carroll, supra, our learned former Chief Justice Maltbie, in Connecticut Appellate Procedure § 275, concluded: 'Where an appeal properly lies, but there has been a failure to follow the requirements of the statutes or rules, the appeal is ordinarily not void, but voidable; the defect may be waived by a failure to take advantage of it; and unless attacked by motion the court will proceed to determine the appeal. The supreme court has said broadly that defects in the method of taking an appeal do not go to the jurisdiction of the court, and has added: 'To hold otherwise would be to exalt...