Miles v. State, No. 07-89-0177-CR

• Court: Court of Appeals of Texas
• Writing for the Court: DODSON; BOYD; POFF
• Citation: 781 S.W.2d 608
• Docket Number: No. 07-89-0177-CR
• Decision Date: 27 July 1989
• Parties: Willie MILES, Appellant, v. The STATE of Texas, Appellee.

Page 608

781 S.W.2d 608 Willie MILES, Appellant,
v.
The STATE of Texas, Appellee. No. 07-89-0177-CR. Court of Appeals of Texas,
Amarillo. July 27, 1989.
As Corrected Aug. 11, 1989.

Kay Davis, Jeff Blackburn, Amarillo, for appellant.

Danny Hill, Potter County Dist. Atty., Amarillo, for appellee.

Before DODSON, BOYD and POFF, JJ.

ON MOTION FOR REHEARING

DODSON, Justice.

We withdraw our initial opinion dated 6 June 1989 and substitute this opinion. In our initial opinion, we overruled the appellant's motion for extension of time to file a written notice of appeal and dismissed his appeal. By this opinion and determination, we grant the appellant's motion for extension of time to file his notice of appeal with directions.

The case is before us without a transcript or statement of facts. In his motion for extension of time to file a notice of appeal, the appellant states that he "pled guilty on April 5, 1989. Therefore, the notice of appeal was originally due to be filed on May 5, 1989." However, our review of the District Clerk's record in this case reveals that the judgment and sentence was signed by the trial judge on 7 April 1989 and that no motion for new trial was filed. Thus, the thirty-day period stated in Rule 41(b) of the Texas Rules of Appellate Procedure began to run on 7 April 1989.

In pertinent part, Rule 40(b)(1) of the Texas Rules of Appellate Procedure provides that "[n]otice of appeal shall be given in writing filed with the clerk of the trial court." Rule 41(b) provides:

(b) Appeals in Criminal Cases.

(1) Time to Perfect Appeal. Appeal is perfected when notice of appeal is filed within thirty days after the day sentence is imposed or suspended in open court or the day an appealable order is signed by the trial judge; except, if a motion for new trial is timely filed, notice of appeal shall be filed within ninety days after the day sentence is imposed or suspended in open court.

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(2) Extension of Time. An extension of time for filing notice of appeal may be granted by the court of appeals if such notice is filed within fifteen days after the last day allowed and within the same period a motion is filed in the court of appeals reasonably explaining the need for such extension. [emphasis added]

Taken together, Rules 40(b)(1) and 41(b)(2) require that the notice of appeal be filed in the trial court, and the motion for extension of time be filed in the court of appeals. Both the notice and the motion must be filed within fifteen days after the last day allowed for filing the notice of appeal under Rule 41(b)(1).

The appellant filed his motion for extension of time in this Court on 17 May 1989, i.e., within the time prescribed by Rule 41(b)(1). However, he did not file his written notice of appeal in the trial court at the same time or at any time within the fifteen-day period prescribed by Rule 41(b)(1). Consequently, by our initial opinion we overruled the appellant's motion for extension of time to file his notice of appeal and dismissed the appeal.

In his motion for rehearing, appellant contends that he will be denied effective assistance of counsel on appeal because his counsel failed to file the notice of appeal in the trial court. In support of his position he relies on Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Evitts teaches that the failure of counsel to comply with a state procedural rule may not operate to deny an appellant a meaningful appeal of his case on the merits.

Rule 83 of the Texas Rules of Appellate Procedure provides:

A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities, in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities provided the court may make no enlargement of the time for filing the transcript and statement of facts except pursuant to paragraph (c) of Rule 54 and except that in criminal cases late filing of the transcript or statement of facts may be permitted on a showing that otherwise the appellant may be deprived of effective assistance of counsel. [emphasis added]

We acknowledge that the court in Johnson v. State, 747 S.W.2d 568 (Tex.App.--Houston [14th Dist.] 1988, no pet.), held that a timely-filed written notice of appeal is jurisdictional and that an appellate court cannot employ Rule 83 to expand the court's jurisdiction and thereby entertain the appeal. However, we respectively decline to follow Johnson in this instance. In Johnson there was no claim of ineffective assistance of counsel as we now have in the case before us. Since we have a direct claim of ineffective assistance of counsel, we conclude that Evitts is controlling. Furthermore, we are persuaded that Rule 83 is the appropriate procedural vehicle to employ when dealing with procedural "miscues" and obvious claims of ineffective assistance of counsel of the Evitts variety.

In sum, we grant the appellant's motion for extension of time to file written notice of appeal in the trial court and direct that the notice be filed on or before 7 August 1989.

BOYD, Justice, concurring.

I join Justice Dodson in his conclusion that our initial opinion overruling appellant's motion for extension of time to file a written notice of appeal must be withdrawn. I also agree with his conclusion that we must grant appellant's motion for extension of time to file his notice of appeal with directions. Because of the importance of the question presented, however, I write to explain my reasoning in arriving at those conclusions.

The history of this case is set out in Justice Dodson's opinion. While no notice of appeal was filed in the trial court within the time limit of Tex.R.App.P. 41(b)(1), ¹ a written motion for extension of time was filed in this Court within the time period prescribed by Rule 41(b)(2). Therefore,

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this case does not present a situation were there was a complete failure to comply with the rules.

In reaching the conclusion that the failure to timely file the notice of appeal deprives this Court of jurisdiction to entertain this appeal, the dissent relies upon Shute v. State, 744 S.W.2d 96 (Tex.Crim.App.1988). With all due respect, I do not agree that Shute mandates that conclusion. In Shute, there was a complete failure to comply with any requirement of Rule 41. Indeed, the court specifically commented that "[n]o timely motion for extension of time to file the notice of appeal was filed." 744 S.W.2d at 97. In my view, the difference between Shute and the instant case is significant. In this case, the partial failure to comply with the rule is a procedural rather than a jurisdictional matter. It is for that reason that the application of Rule 83 in this case is especially appropriate. This is not a case where no effort has been made to comply with the prescribed rules governing appeals. Rather, it is one where effort has been made to follow the prescribed procedure, although a mistake was made in interpretation and application of that procedure. The effect of the application of Rule 83 in this case is not to grant an out-of-time appeal, but is simply to permit the orderly and proper completion of an appeal duly invoked.

Moreover, Rule 2(b), with the admonition that it may not be used to suspend the requirements or provisions of the Code of Criminal Procedure, authorizes this Court "in the interest of expediting a...