McVea v. State, No. 2-379A62

Docket NºNo. 2-379A62
Citation471 N.E.2d 1, 182 Ind.App. 563
Case DateOctober 25, 1979
CourtCourt of Appeals of Indiana

Page 1

471 N.E.2d 1
182 Ind.App. 563
Robert Henry McVEA
v.
STATE of Indiana.
No. 2-379A62.
Court of Appeals of Indiana,
Second District.
Oct. 25, 1979.

Court of Appeals of Indiana

Aaron E. Haith, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Jack R. O'Neill, Deputy Atty. Gen., for appellee.

SHIELDS, Judge.

Defendant-appellant Henry McVea appeals his conviction of Involuntary Manslaughter. We, however, sua sponte dismiss this appeal. 1

[182 Ind.App. 564] Based upon the representations in the petition filed by his appellate counsel, this Court granted McVea permission to file a belated appeal, Indiana Rules of Procedure, Post-Conviction Rule 2 Sec. 2. The certified record before this Court, however, indicates certain representations in this petition are at best inaccurate. 2 We hold permission to file a belated appeal, pursuant to P.C.R. 2, Sec. 2, granted under such circumstances does not justify consideration of the merits of this appeal. 3

The petition for permission to file a belated appeal was filed on March 12, 1979 and alleged inter alia: McVea was sentenced on August 14, 1978; McVea's motion to correct errors was filed and overruled on August 14, 1978; a petition for permission to file a belated motion to correct errors 4 was filed with the trial court, which motion was granted on October 31, 1978; the praecipe was filed on November 6, 1978; the record was timely filed with this Court on

Page 2

January 24, 1979; that counsel erred in calculating the time the brief was due resulting in the appellant brief being filed with this Court one day beyond the time allowed. Upon the strength of these allegations, this Court granted permission to file a belated appeal on March 19, 1979.

The record was refiled with this Court on March 23, 1979 along with the appellant briefs. The record before this Court contains no entries indicating either the filing of a petition for permission to file a belated motion to correct errors or the trial court's granting thereof. 5 The [182 Ind.App. 565] record does contain what purports to be a certified copy of the belated motion to correct errors; however, this purported motion is merely a photocopy of the original motion to correct errors, signed by McVea's trial counsel and file stamped August 14, 1978. There are no entries, however, indicating the filing of a belated motion to correct errors or the trial court's ruling thereon. Moreover, none of the records indicate an appellant brief was filed at any time before March 23, 1978.

In granting permission to file a belated appeal, this Court relies upon the averments in the petition. Based upon McVea's petition, this Court assumed the appeal was proper and timely...

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2 practice notes
  • Koors v. Great Southwest Fire Ins. Co., No. 29A02-8708-CV-00315
    • United States
    • Indiana Court of Appeals of Indiana
    • December 1, 1988
    ...271 Ind. 286, 392 N.E.2d 459; State ex rel. Buis v. Hendricks Superior Court (1964), 246 Ind. 1, 201 N.E.2d 697; McVea v. State (1979), 182 Ind.App. 563, 471 N.E.2d 1. The appellate time clock had long since stopped ticking before Hedrick filed his petition for extension of time to file the......
  • Stanley v. Johnson, No. 3-1078A288
    • United States
    • Indiana Court of Appeals of Indiana
    • October 25, 1979
    ...that the jury's verdict could have been predicated upon that instruction. Hendrickson & Sons Motor Co., supra. Stanley has not shown [182 Ind.App. 563] us that he was harmed by the giving of the instruction or that the jury wrongfully considered it in reaching its Accordingly, we affirm. GA......
2 cases
  • Koors v. Great Southwest Fire Ins. Co., No. 29A02-8708-CV-00315
    • United States
    • Indiana Court of Appeals of Indiana
    • December 1, 1988
    ...271 Ind. 286, 392 N.E.2d 459; State ex rel. Buis v. Hendricks Superior Court (1964), 246 Ind. 1, 201 N.E.2d 697; McVea v. State (1979), 182 Ind.App. 563, 471 N.E.2d 1. The appellate time clock had long since stopped ticking before Hedrick filed his petition for extension of time to file the......
  • Stanley v. Johnson, No. 3-1078A288
    • United States
    • Indiana Court of Appeals of Indiana
    • October 25, 1979
    ...that the jury's verdict could have been predicated upon that instruction. Hendrickson & Sons Motor Co., supra. Stanley has not shown [182 Ind.App. 563] us that he was harmed by the giving of the instruction or that the jury wrongfully considered it in reaching its Accordingly, we affirm. GA......

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