218 Conn. 479 | Conn. | 1991
In this habeas corpus action, the respondent filed an appeal from the judgment of the habeas court without first obtaining certification by a judge as required by General Statutes § 52-470 (b)
The principal issue is whether the term “appellant” in the statute refers to the respondent as well as to the petitioner in a habeas corpus proceeding. We agree with the petitioner that § 52-470 (b) imposes a certifi
The petitioner was convicted of first degree robbery in violation of General Statutes § 53a-134 after a trial by jury. He was sentenced by the court, Mulvey, J., on November 4, 1983, to an effective sentence of twelve years imprisonment. On February 9,1990, he filed an amended habeas corpus petition alleging, inter alia, that his trial counsel had thwarted his right to testify in his own defense. Concluding that the petitioner had proved this ground for relief, the habeas court, Dunn, J., on September 20,1990, ordered his release from custody unless a new trial was held within six months.
Within the ten days allowed by § 52-470 (b), the respondent requested certification to appeal, but the habeas court judge refused to grant it. A motion for
The respondent argues that the term “appellant,” upon whom the requirement of certification is imposed by § 52-470 (b), must be deemed to refer only to a person who has initiated a “habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime.” (Emphasis added.) He maintains that the possessive pronoun, “his,” relates to “appellant,” thus limiting its meaning to a person seeking the release of a convicted prisoner.
We need not consider whether this textual analysis is more persuasive than one that would relate “his” solely to the phrase “one who has been convicted of crime,” because we conclude that the respondent’s interpretation is precluded by Practice Book § 4143 (b).
The matter before us is an appeal, not a writ of error. We conclude that the inability of the respondent to obtain certification, as required by § 52-470 (b) for any appellant, barred the present appeal. The petitioner’s motion to dismiss for lack of jurisdiction to entertain the appeal must be granted.
The appeal is dismissed.
In this opinion the other justices concurred.
General Statutes § 52-470 (b) provides as follows: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”
The judgment of the habeas court was rendered on September 20,1990, while the appeal was filed on January 31,1991, obviously well beyond the time allowed by Practice Book § 4009 for taking an appeal. The respondent contends that the time for taking an appeal pursuant to General Statutes § 52-470 (b) should be measured from January 20, 1991, when its application for certification was finally denied by virtue of the dismissal of its motion for review of the habeas court’s refusal to certify. See State v. Tucker, 23 Conn. App. 559, 563, 583 A.2d 139 (1990). The petitioner relies upon LaReau v. Reincke, 158 Conn. 486, 496, 264 A.2d 576 (1969), in which the court held that the time limit for filing an appeal is not jurisdictional, but also indicated that the proper method of preserving the right to file an appeal, when certification pursuant to § 52-470 (b) is required, is to file a motion for an extension of time with the trial court. Because of our conclusion that we lack jurisdiction of this appeal for reasons unrelated to timeliness, it would be inappropriate for us to address this issue.
Practice Book § 4143 (b) provides as follows: “No writ of error may be brought in any civil or criminal proceeding for the correction of any error where (1) the error might have been reviewed by process of appeal, or by way of certification, except that the state may bring a writ of error where it has been denied certification to appeal in a habeas corpus proceeding pursuant to Gen. Stat. § 52-470 (b) and a petitioner may bring a writ of error in a habeas corpus proceeding requiring certification to appeal where petitioner has been denied certification to appeal and the issues sought to be raised do not present any federal question cognizable by the federal district court, or (2) the parties, by failure timely to seek a transfer or otherwise, have consented to have the case determined by a court or tribunal from whose judgment there is no right of appeal or opportunity for certification.”