BRIAN KELLY JONES v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 10, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002795-MR
BRIAN KELLY JONES
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 96-CR-000075
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Brian Kelly Jones appeals from the denial of
his motion to vacate, modify or set aside sentence pursuant to
RCr 11.42.
As Jones's RCr 11.42 motion was not timely filed, we
affirm.
Following a jury trial held September 17-19, 1996,
Brian Kelly Jones was found guilty of first-degree robbery and
being a first-degree persistent felony offender.
The convictions
resulted from a carjacking which occurred on the night of
December 5, 1995.
On November 11, 1996, the court entered its
judgment of conviction and sentence, sentencing Jones to ten
years for the robbery conviction enhanced to thirty years by the
PFO I conviction.
Jones's conviction was affirmed by the
Kentucky Supreme Court in an opinion rendered on September 4,
1997 and made final on September 25, 1997, 96-SC-1087-MR.
In a
letter dated September 29, 1997, Jones's public defender informed
him that the opinion rendered by the Kentucky Supreme Court on
September 4, 1997 had brought the direct appeal of his case to a
close, and that he would no longer be representing Jones and that
Jones's file would be closed.
On October 3, 2000, Jones filed an RCr 11.42 motion to
vacate, modify or set aside sentence.
On October 12, 2000, the
trial court entered an order denying the motion.
The court found
that Jones's RCr 11.42 motion was not timely filed within three
years per RCr 11.42(10), as the direct appeal became final
September 25, 1997 and the RCr 11.42 motion was not filed until
October 3, 2000.
The court further found that the motion sought
to readdress matters that should have been addressed on direct
appeal.
Jones appeals the trial court's October 12, 2000 order.
On appeal, Jones contends that his RCr 11.42 motion was
timely filed, but that he experienced difficulties in filing as
he was proceeding pro se, along with circumstances including
closings of the prison library, unavailability of library staff
and notaries, having no control of his own schedule, difficulty
paying copying fees due to indigency, and the fact that as a
prisoner proceeding pro se, he could not travel to the courthouse
to deliver a pleading and ensure that it was file-stamped on a
particular day.
Jones contends that these difficulties interfere
with when or how soon a prisoner is able get legal papers into
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the hands of prison officials, or when prison officials can get
around to processing a prisoner's paperwork.
Jones further
argues that the public defender's letter informing him of the
Kentucky Supreme Court's denial of his direct appeal was dated
September 29, 1997, and that the mailbox rule would allow for
three days between the time the letter was mailed and when the
mailing was received.
Hence, Jones contends that this would
extend his time for filing his RCr 11.42 motion until October 1,
2000, the day prison officials finally notarized, copied, and put
Jones's motion in the prison mail.
RCr 11.42(10) states:
Any motion under this rule shall be filed
within three years after the judgment becomes
final, unless the motion alleges and the
movant proves either:
(a) that the facts upon which the claim is
predicated were unknown to the movant and
could not have been ascertained by the
exercise of due diligence; or
(b) that the fundamental constitutional right
asserted was not established within the
period provided for herein and has been held
to apply retroactively.
RCr 11.42(10) clearly states that the motion must be
filed within three years after the judgment becomes final.
In
Palmer v. Commonwealth, Ky. App., 3 S.W.3d 763 (1999), this Court
interpreted the language of RCr 11.42(10) to mean that the time
for filing an RCr 11.42 motion begins to run from the date of the
final judgment on appeal.
Jones does not cite and we are not
aware of any authority which supports his contention that the
time for filing begins to run when a defendant is notified of the
final judgment.
Further, the allegations in Jones's motion do
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not fall under the exceptions provided for by RCr 11.42(10)(a) or
(b).
Therefore, Jones had three years from the Kentucky Supreme
Court's entry of final judgment on September 25, 1997 in which to
file his RCr 11.42 motion, making the deadline for filing the
motion as September 26, 2000.
The record indicates that Jones's
RCr 11.42 motion was received by the Clerk of the Jefferson
Circuit Court on October 3, 2000.
As the RCr 11.42 motion was
not timely filed, this Court is precluded from considering the
merits thereof.
The order of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian Kelly Jones, pro se
Burgin, Kentucky
A. B. Chandler, III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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