COMMONWEALTH OF KENTUCKY v. NORMAN BROOKS
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RENDERED:
November 5, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-001510-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
ACTION NO. 97-CR-000986
JOHN POTTER, JUDGE
v.
NORMAN BROOKS
APPELLEE
OPINION AND ORDER
DISMISSING APPEAL
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BEFORE: COMBS, EMBERTON, AND GUIDUGLI, JUDGES.
EMBERTON, JUDGE.
Appellant, the Commonwealth of Kentucky, filed
a notice of appeal with the Jefferson Circuit Court on June 24,
1999.
Appellee, Norman Brooks, moves this Court to dismiss the
appeal as untimely taken pursuant to RCr 12.04.
On May 7, 1999, the trial court entered an order
granting Brooks’s motion to dismiss, but delayed effect of the
order for twenty (20) days.
On June 24, 1999, the Commonwealth
filed a notice of appeal, forty-eight (48) days from the date of
entry of the order.
Brooks alleges in his motion to dismiss that
the notice of appeal was untimely filed pursuant to RCr 12.04,
which requires that a notice of appeal be filed on or before
thirty (30) days from the date of entry of the judgment.
The
Commonwealth contends that the appeal was timely filed from the
date on which the order took effect — twenty (20) days after its
entry.
The sole issue in this motion is at what time the order
dismissing Brooks’s appeal from the circuit court was final.
An appeal must be taken within thirty (30) days of the
date of entry of the order from which it is taken, subject to RCr
12.06.
RCr 12.04(3).
entered on May 7, 1999.
The Commonwealth appeals from an order
That the effective date of the order is
later than the date of entry of the order is immaterial.
RCr 12.06 requires the circuit court clerk to serve a
written notice of the entry of the order on counsel for the
defendant or the defendant himself if he is proceeding pro se.
RCr 12.06(1).
The circuit court clerk is further required to
note on the docket sheet the date and manner of service.
12.06(2).
RCr
This date shall be used to compute the time for filing
a notice of appeal under RCr 12.04(3).
Id.
Thus, the fact that
the entry of the order is not adequately noted on the docket
sheet does not protect the Commonwealth’s right to appeal.
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For the foregoing reasons, this Court ORDERS that the
appeal be, and it is hereby, DISMISSED.
ALL CONCUR.
ENTERED:
November 5, 1999
/s/ Thomas D. Emberton
JUDGE, COURT OF APPEALS
APPELLANT’S RESPONSE:
APPELLEE’S MOTION:
TERESA YOUNG
ASSISTANT COMMONWEALTH
ATTORNEY
LOUISVILLE, KENTUCKY
RAY CLOONEY
LOUISVILLE, KENTUCKY
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