State v. Holup

• Decision Date: 18 June 1974
• Citation: 352 A.2d 275,166 Conn. 471
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael HOLUP. STATE of Connecticut v. John W. RALLS.

Page 275

352 A.2d 275

166 Conn. 471

STATE of Connecticut v. Michael HOLUP.

STATE of Connecticut v. John W. RALLS.

Supreme Court of Connecticut.

June 18, 1974.

Ernest J. Diette, Jr., Asst, State's Atty., in support of the motions.

Before HOUSE, C.J., and COTTER, LOISELLE, BOGDANSKI and MULVEY, JJ.

PER CURIAM.

In each of these cases the state has, pursuant to the provisions of § 762 of the Practice Book, as amended, moved that the appeal be expedited by suspending some of the requirements for presenting an appeal to this court. ¹

It appears that there has been an unreasonable delay in the preparation of each of these appeals. In the Holup case, the appeal was filed by the defendant on November 12, 1970. The defendant's brief was not filed until May 30, 1974, and the state now requests that it be permitted to file its brief in typewritten form which, it represents, can be done within ten days or two weeks and will expedite hearing of the appeal.

In the Ralls case, the appeal was filed on December 30, 1970, and although the record was issued by the clerk of the Superior Court on October 31, 1973, the brief of the defendant has not as yet been filed.

The rules contained in the Practice Book 'set forth the time period for each step in the appeal. Those periods govern unless there is good cause for modifying them. And the cause which is asserted to be a good one should be explicitly set forth in any motion for an extension filed under Practice Book § 665. ² The granting of such a motion in the trial court, however, in no wise affects the power of this court under § 696 ³ to compel the expeditious processing of appeals. . . . Under § 696, this court will, as occasion requires, make its own determination whether, from the time an appeal is filed, it is being prosecuted with proper diligence. . . . The work of this court is not expedited if counsel are permitted to dally for the purpose of bargaining with the opposition, for personal convenience or because other cases in hand are deemed by them to deserve preferential treatment.' (Footnotes added.) Chanosky v. City Building Supply Co., 152 Conn. 449, 451-452, 208 A.2d 337, 339.

When any party to an appeal fails to prosecute or defend that appeal with proper diligence, this court, on motion by any other party or on its own motion, may dismiss the appeal or set aside the judgment with costs. Practice Book § 696. Also, in the interest of expediting decision or for other good cause, this court may suspend the requirements or provisions of any of the rules on the application of a party or on its own motion and may order proceedings in accordance with its direction. Practice Book § 762.

Although these remedies have been available to the state and to each of the defendants, it was not until this late date in the court year and on the eve of the court's adjournment for the summer recess that the state has sought the benefit of the provisions of § 762 of the Practice Book. We also note that neither defendant has ever sought the benefit of the provisions of either §§ 696 or 762 of the Practice Book, choosing instead to ignore the availability of relief under these sections and to proceed by way of writs of habeas corpus in the federal district court which has, nonetheless, assumed jurisdiction.

Since the appeal in each case is properly pending in this court and it appears that the motions to expedite the appeal have been properly filed and should be granted, it is ordered as follows:

In the Holup case

The state is directed to file its brief on or before June 21, 1974. This brief may be in typewritten form with copies conforming to the requirements of § 723 of the Practice Book, as amended, to be filed as soon as is reasonably practicable. This case is assigned for oral argument in the Supreme Court at 10 a.m., Tuesday, June 25, 1974.

In the Ralls case

The requirements of chapters 28, 33 and 34 of the Practice Book are suspended insofar as they relate respectively to extensions of time for filing briefs, assignment of cases for hearing, and the printing and filing of briefs and appendices.

The defendant is directed to file copies of his brief and appendix on or before July 25, 1974. The state is directed to file copies of its brief and appendix on or before September 10, 1974. Any reply brief of the defendant shall be filed on or before September 18, 1974.

The dates fixed for the filing of briefs have been set with full consideration of the fact that the printed record runs to 275 pages and the defendant has assigned error to 63 paragraphs of the court's finding. No extension of time...