PAUL J. GIBSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 5, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-1928-MR
PAUL J. GIBSON
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE KELLEY R. ASBURY, JUDGE
ACTION NO. 88-CR-0047
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
DISMISSING APPEAL
* * * * * * *
BEFORE:
GUDGEL, Chief Judge, GARDNER and KNOPF, Judges.
KNOPF, JUDGE:
1988.
Paul Gibson pled guilty to murder on August 23,
He was sentenced to thirty (30) years imprisonment.
Gibson has filed two (2) previous RCr 11.42 motions subsequent to
his sentencing.
This is his third appeal from the denial of an
RCr 11.42 motion.
In this appeal he complains that the
Commonwealth failed to fulfil its part of the plea agreement by
contesting parole.
board.
In May 1997 Gibson appeared before the parole
Parole was denied.
Gibson asked if the Commonwealth had
contested the granting of his parole but was not given any
answer.
Thus, based on speculation Gibson maintains that the
Commonwealth failed to satisfy its part of the plea agreement.
His motion under RCr 11.42 was to enforce that plea agreement.
The trial court denied Gibson's motion on June 12,
1997.
Gibson filed the motion for reconsideration of that order
which was denied on June 26, 1997.
Gibson's notice of appeal was
filed in the circuit court on July 30, 1997.
Rule RCr 12.04
provides:
The time
shall be
entry of
is taken
within which an appeal may be taken
ten (10) days after the date of
the judgment or order from which it
. . . .
The motion to reconsider did not toll the time to file
his appeal.
Cobb v. Carpenter, Ky. App., 553 S.W.2d 290 (1977).
Nevertheless, Gibson's notice of appeal was more than a month
after the order denying his RCr 11.42 motion and a month after
the order denying his motion to reconsider.
The timely filing of
a notice of appeal is mandatory and jurisdictional.
Commonwealth, Ky. App., 765 S.W.2d 30 (1989).
timely file a notice of appeal in this case.
Demoss v.
Gibson failed to
Therefore, it is
ordered that this appeal is dismissed.
ALL CONCUR.
ENTERED:
June 5, 1998
/s/ Wm. L. Knopf
JUDGE, COURT OF APPEALS
-2-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Gibson, Pro Se
Green River Correctional
Complex
Central City, Kentucky
A.B. Chandler III
Attorney General of Kentucky
Vickie L. Wise
Assistant Attorney General
Frankfort, Kentucky
-3-
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