Wednesday, November 24, 2010

State v. Ciccone - Notice of Appeal

In the third criminal case of the day, the Supreme Court dismissed Albert Ciccone's appeal from two murder convictions because the notice of appeal was untimely.

The District Court pronounced sentence on June 7, 2005, but the filing stamp bore a handwritten notation of May 7, 2005. On June 21, 2005, having noticed the discrepancy, the District Court entered an amended judgment. Forty-two days later, Mr. Ciccone's notice of appeal was filed.

The Supreme Court dismissed the appeal as untimely holding that the time for appeal began on June 7, 2005. The Court wrote that a party cannot complain of prejudice due to the lack of notice that the 42-day window for appeal had begun unless both 1) the clerk cannot prove it served the document and 2) the party did not actually know that a final judgment had been entered. Here, even though the judgment bore the wrong date, a copy of it had been served on counsel on June 8.

The lesson: File the notice of appeal sooner rather than later because the 42-day window for appeal begins to run as soon as the judgment is entered -- even if the judgment contains errors that will later have to be corrected. It is not difficult to withdraw an appeal that the client later decides was ill-advised. It is impossible to file a late appeal.

1 comment:

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