The Supreme Court issued seven opinions in civil cases this afternoon, including another dismissal of a parental termination case where there was no Notice of Appeal to the Supreme Court filed after the Court granted a permissive appeal. (See "Notice of Appeal Must be Filed Even When Permissive Appeal is Accepted by Supreme Court" May 7th SCOIDBlog).
The Court of Appeals also dismissed another appeal (the second this week! See "Amended Petition Did not Restart Time to File Notice of Appeal" May 26th SCOIDBlog) for the failure to file a timely notice of appeal. State v. Wally Kay Schultz, http://www.isc.idaho.gov/opinions/Schultz,%20Wally.pdf.
In Schultz, the district court issued a "Temporary Order on Rider Review" placing the defendant on probation. Three days later, the court issued an "Order Upon 180-Day Review Hearing." The defendant filed a Notice of Appeal 42 days after the second order, but 45 days after the first. The COA says that's too late because the time to file a NOA begins to run when the court "releases its retained jurisdiction or places the defendant on probation." Schultz was placed on probation at the time of the "Temporary Order" and thus the NOA was three days late.
Again, as with the Ciccone case, Mr. Schultz will now have to file a post-conviction petition alleging ineffective assistance of trial counsel to try and get his appeal reinstated. There is no reason to wait until the last day to file the NOA. If counsel had filed a week after the second order, the NOA would have been timely as to the first order too.
Finally, the Supreme Court, in a 3-2 decision, upheld a murder conviction over multiple challenges. State v. Larry Sverson, http://www.isc.idaho.gov/opinions/seversonopinion.pdf. This is a big opinion which will take some time to digest, as there are claims of conflict of interest, improper amendment of indictment, jury unanimity instructions, sufficiency of the evidence and prosecutorial misconduct.
There's my weekend reading assignment.
Subscribe to:
Post Comments (Atom)
Since I am mentioned by name in the Severson case, I thought I should correct the record, which the AG's Office and the SAPD both missed. I was hired by the Elmore County Commissioners as Conflicts Counsel, and I have never been an employee of the Elmore County Public Defender's Office, and have never been on the payroll. I was retained in the case of the Estate of Mary Severson, to round up estate assets, which was believed at the time to consist of assets that Mr. Severson's first attorney was selling. Finally, Mitch Egusquiza was the attorney in the life insurance case, which proceeds pass outside of any probate. So, I was not getting any income from the life insurance, no matter what, as I was never the attorney in that case, and those assets were not estate assets! Hope this helps, Terry Ratliff.
ReplyDeleteBased upon Terry's clarification of the facts, I think this is a great time to remind everyone of the importance of creating an accurate and clear record for appeal. In the past week I've heard from a few different trial attorneys questioning the facts stated in an appellate opinion. Unfortunately, appellate courts and appellate counsel are limited by the record we are provided. If the record below isn't accurate or clear, the appellate opinion can be based upon facts which never existed. For example, in the Severson case here is the record we had...
ReplyDeleteFrom the 1/16/04 Conflict of Interest Hearing, p. 293-294.
[District Court] My guess would be if there is simply a retaining of Mr. Ratliff as conflicts counsel,that poses an entirely different situation than if Mr. Ratliff has actually been retained by the County as a member of the Public Defender staff. Mr. Frachiseur, can you assist in that regard?
MR. FRACHISEUR: Certainly, Judge. I don't think it is necessarily a subject for proof. Mr. Ratliff is a salaried Deputy Public Defender for Elmore County; no doubt about that. He is not retained simply as conflict counsel.
THE COURT: So he is a salaried employee then, of the Public Defender's office?
MR. FRACHISEUR: He is.
I agree Sara, Ed misspoke the facts, as he was swamped with working the case, had some staff changes, and simply missed it. It was only after the briefs had been filed, and I believe argument scheduled, that I heard what had happened, and I went back through the pay records of the County, with their clerk, and verified the accuracy of my status, but the record had already been made.
ReplyDelete