Amended Judgment Did Not Restart Time to File Notice of Appeal

An appeal in a first-degree murder case was dismissed today because the Notice of Appeal was not timely filed.

The district court imposed a determinate life sentence on June 7, 2005. The judgment was filed the same day, but mistakenly file-stamped "May 7, 2005." An amended judgment was filed on June 21. "The only change between the original and amended judgment concerns the date of the file stamp." Ciccone filed a Notice of Appeal 42 days after the entry of the amended judgment, but 56 days after the original judgment.

Not good enough says the Court of Appeals:

"With exception of the dates of the file stamp and the court's signature, the amended judgment is identical to the original judgment and did not alter any of the terms from which Ciccone now appeals. In other words, Ciccone is not appealing the only changed term-the date of the file stamp on the amended order. Rather, he is appealing several substantive issues-speedy trial, due process, prosecutorial misconduct, and excessive sentence-which he could have raised upon entry of the original judgment that, as noted, the register of court actions indicates was filed on June 7."

The COA concludes,"[t]hus, the notice of appeal, filed fifty-six days from when the initial judgment and commitment was entered, is untimely as to those issues."

State v. Ciccone, http://www.isc.idaho.gov/opinions/Ciccone,%20Albert.pdf


Now Ciccone will have to file a post-conviction petition alleging ineffective assistance of counsel for failing to timely file the NOA, if he hasn't done so already.