State v. Mower

• Decision Date: 08 July 1969
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Robert O. MOWER.

Page 604

254 A.2d 604

STATE of Maine v. Robert O. MOWER.

Supreme Judicial Court of Maine.

July 8, 1969.

John L. Merrill, County Atty., and Elton A. Burky, Asst. County Atty., Skowhegan, for plaintiff.

James MacMichael, Skowhegan, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE, and WEATHERBEE, JJ.

WEATHERBEE, Justice.

Defendant was convicted of the offense of breaking and entering with intent to commit larceny in the Somerset County Superior Court and judgment was entered against him on September 30, 1968. At the time of his trial and sentence he was represented by employed counsel. He was sentenced to the Maine State Prison and committed in execution of the sentence. The ten day period provided by M.R.Crim.P., Rule 37(c) had not been extended and it expired October 10. On October 15, the Clerk of Courts received in the mail an undated notice of appeal from the judgment signed by the Defendant.

On November 22, a Justice of the Superior Court issued an order denying the appeal for want of timely filing.

The Defendant entered a notice of appeal from this denial and another Justice, after hearing, found Defendant to be indigent and appointed counsel to represent him in this appeal. The Justice stayed execution of Defendant's sentence on the judgment from which Defendant seeks to appeal and bail was set but Defendant was not at that time admitted to bail as he was still imprisoned as a parole violator serving a previously imposed sentence. He has since been released on bail.

The sole issue presented to us is the validity of Defendant's attempted appeal from the judgment of September 30. The procedure for appeal from a judgment of the Superior Court in a criminal matter is found in M.R.Crim.P., Rule 37, the presently applicable portions of which read:

'a) How Taken. Whenever a judgment of the Superior Court * * * is by law reviewable by the Law Court, such review shall be by appeal in accordance with these rules. * * * An appeal may be taken by filing a notice of appeal with the Clerk. * *

'c) Time for Taking Appeal. An appeal may be taken within ten days after entry of the judgment * * * appealed from * * * Except when prohibited by statute, upon a showing of excusable neglect, the court may, before or after the time has expired, with or without motion and notice, extend the time for filing the notice of appeal otherwise allowed for a period not to exceed 30 days from the expiration of the original time prescribed by this paragraph. * * *'

Defendant's notice of appeal was filed after the expiration of the ten day period. No extension of the time allowed for appeal was made and the thirty day period during which such an extension could have been made has also expired. M.R.Crim.P., Rule 45(b) specifically prohibits further extension of the time for filing appeals beyond the provisions of section 37(c). The limits prescribed by Rule 37(c) for appeals in criminal cases are jurisdictional. This Court is without authority to entertain an appeal which has not been timely filed. 15 M.R.S.A. § 2115; United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Glassman, Maine Practice, § 37.6.

It is also urged by Defendant that he was deprived of the right of appeal because his letter from the prison was delayed there by reason of insufficient postage before being mailed to the Clerk of Courts. Therefore, he argues, under the circumstances his appeal should be considered as having been filed. This contention, however, is presented for the first time in Defendant's Statement of Points on Appeal relating to the present, second appeal. No evidence has been offered relating to this issue and no factual determination has been made of it. Allegations contained in a Statement of Points on Appeal are not evidence of facts. McKague v. John Jameson Tree Service, Me., 250 A.2d 198 (1969).

While Rule 37 places the responsibility for timely filing of a notice of appeal upon a Defendant, we recognize that if an agency of the State should frustrate a Defendant's timely efforts to comply with the rule, principles of justice might well require that the notice be considered to have been duly filed and an appellate review be granted. Williams v. United States, 8th Cir., 402 F.2d 548 (1968). Here we know only that an envelope was received in the office of the Clerk of Courts on October 15 containing 1) an undated notice of appeal 2) a covering letter bearing two dates, October 7 and October 8 (both before the expiration of the period for appeal) and 3) a letter from Defendant dated October 11 (after the expiration of the period for appeal). The significance of these dates is unexplained. If in fact a State agency deprived Defendant of his right to appeal, post conviction procedures are available for determination of the issue.

Defendant also contends that even if the appeal was not timely filed the Court's failure to notify the Defendant of his right to appeal and the requirement of filing prompt notice of appeal is a denial of his right to due process when the Defendant is represented by his personally selected counsel during the trial stage but is indigent for the purposes of appeal.

The pertinent language of Rule 37(c) reads:

'When a court after trial imposes sentence on a defendant not represented by counsel, or represented by court appointed counsel, the defendant shall be advised of his right to appeal, and, if he so requests, the court shall cause a notice of appeal to be prepared and filed on behalf of the defendant forthwith.' (Emphasis added.)

The record demonstrates no failure of compliance with the rule. Defendant was represented at trial and sentence by counsel whom he had himself employed. There was...