947 N.E.2d 494
Ind. Ct. App.2011Background
- Tarrance pleaded guilty to Class B felony robbery while armed with a deadly weapon and received 20 years with 14 executed and 6 suspended to probation; sentencing order entered September 22, 2010.
- Tarrance challenged the sentence on appeal after a sentencing hearing on September 17, 2010.
- On October 15, 2010 Tarrance sent a handwritten pro se note to the trial court requesting appellate review and appointment of counsel.
- The State Public Defender was appointed on October 26, 2010; counsel filed an Amended Notice of Appeal on October 28, 2010 claiming the pro se letter was the initial notice.
- Appellate Rule 9(A)(1) requires a Notice of Appeal be filed within 30 days after entry of Final Judgment; Tarrance’s amended notice was filed 36 days after final judgment.
- The Court dismissed Tarrance’s appeal for lack of subject-matter jurisdiction, concluding Tarrance did not timely file a proper notice of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Tarrance’s notice of appeal | Tarrance's pro se letter within 30 days preserved appeal | Amended notice filed after 30 days failed to satisfy Rule 9 timing | No jurisdiction; untimely under Rule 9(A)(1). |
| Whether the pro se letter can serve as a notice of appeal | Pro se letter signified intent to appeal | Letter failed to conform to Rule 9(F) requirements | Pro se letter insufficient to constitute notice of appeal. |
| Effect of counsel’s amended notice of appeal | Counsel’s filing could cure defects | Amendment filed beyond the 30-day window cannot vest jurisdiction | Amendment cannot cure untimeliness; no jurisdiction. |
| Court’s authority to extend time for filing appeal | Potential belated appeal permissible under Post-Conviction Rule 2 | Appellate Rule 9 timing controls jurisdiction; extensions not allowed here | No extension; jurisdiction absent. |
| Consequences of lack of jurisdiction on review | Possible petition for belated notice under Post-Conviction Rule 2 still viable | No relief without timely notice | Appeal dismissed for lack of jurisdiction. |
Key Cases Cited
- Sewell v. State, 939 N.E.2d 686 (Ind.Ct.App. 2010) (timing and content requirements for proper notice of appeal; court cannot extend time)
- Jernigan v. State, 894 N.E.2d 1044 (Ind.Ct.App. 2008) (sua sponte review of timeliness of appeal; jurisdictional issue)
- Bohlander v. Bohlander, 875 N.E.2d 299 (Ind.Ct.App. 2007) (timeliness and jurisdictional consequences of late appeal)
- Georgos v. Jackson, 790 N.E.2d 448 (Ind.2003) (cited for jurisdictional principle on appeals)