MICHAEL BRENT SIMPSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 4, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002206-MR
MICHAEL BRENT SIMPSON
APPELLANT
APPEAL FROM MENIFEE CIRCUIT COURT
HONORABLE WILLIAM MAINS, JUDGE
ACTION NO. 94-CR-00002
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:
COMBS, DYCHE, and GARDNER, Judges.
COMBS, JUDGE:
Michael Simpson brings this appeal from an order
of the Menifee Circuit Court denying his motion for credit on
time served and for relief pursuant to Kentucky Rule of Civil
Procedure (CR) 60.02.
In March 1994, Simpson was indicted on one count of
first-degree robbery.
On June 7, 1995 he entered a guilty plea
to the amended charge of second-degree robbery.
The trial court
entered its final judgment of conviction on September 7, 1995.
Simpson was sentenced to five years in the penitentiary.
The
trial court awarded Simpson two hundred thirty-seven (237) days
pre-sentence jail-time credit on the sentence.
See KRS 532.120.
After his motion for shock probation was denied,
Simpson filed several pro se motions requesting additional jailtime credit.
court.1
Each of these motions was denied by the trial
No appeal was taken.
On April 23, 1998, Simpson filed a motion pursuant to
CR 60.02 (e) and (f).
In the motion, Simpson again requested
additional jail-time credit.
On May 1, 1998, the Commonwealth's
Attorney filed a response to the CR 60.02 motion.
1998, the trial court denied the motion.
On July 2,
More than thirty days
later, Simpson filed his notice of appeal on August 20, 1998.
On appeal, Simpson argues that he is entitled to six
hundred forty-two (642) days pre-sentence jail-time credit on his
five-year sentence.
Without addressing the underlying issue that
Simpson argues supports his claim for additional jail-time
credit, we must affirm the trial court's denial of his motion on
jurisdictional grounds.
CR 73.02(1)(a) requires that the notice of appeal be
filed within thirty (30) days after the date of notation of
service of the judgment or order.
CR 73.02(2) mandatorily
provides that the failure of a party to file timely a notice of
appeal shall result in a dismissal of the appeal.
A review of
the record indicates that Simpson's notice of appeal was not
timely filed within the thirty-day period -- that is, on or
before August 2, 1998.
Simpson's failure to file timely the
1
Orders denying the motions were entered on January 13,
1997; March 24, 1997; and December 9, 1997.
-2-
necessary notice of appeal requires this court to dismiss the
appeal.2
The appeal is hereby ORDERED dismissed.
ALL CONCUR.
/s/ Sara Combs
JUDGE, COURT OF APPEALS
ENTERED: June 4, 1999
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Michael Simpson
LaGrange, KY
Albert B. Chandler III
Attorney General of Kentucky
Anitria M. Franklin
Assistant Attorney General
Frankfort, KY
2
Having reviewed the record, we note that the issue of jailtime credit was thoroughly discussed at Simpson's sentencing
hearing. In the end, the Commonwealth and Simpson's defense
stipulated that Simpson was entitled to two hundred thirty-seven
days pre-sentence jail-time credit on his five-year sentence.
-3-
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