Conley v. State

Annotate this Case

545 So. 2d 246 (1989)

Linder B. CONLEY v. STATE.

4 Div. 165.

Court of Criminal Appeals of Alabama.

March 17, 1989.

Rehearing Denied April 28, 1989.

Jim L. DeBardelaben of McPhillips, DeBardelaben & Hawthorne, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Linder B. Conley was convicted in Russell County Circuit Court for first degree *247 murder. He was sentenced to life imprisonment. The appellant filed a Rule 20 petition. The trial court dismissed the petition on April 12, 1988. The appellant filed a Motion to Reconsider on May 12, 1988, and a Motion to Amend and Reconsider on May 24, 1988. Both motions were denied on June 6, 1988. The appellant filed written notice of appeal on June 7, 1988. This appeal is dismissed because it was untimely filed.

A.R. Crim.P.Temp. 20.10 provides that a decision of the circuit court may be appealed to this Court pursuant to Rule 4 of the Alabama Rules of Appellate Procedure. Notice of appeal must be filed "within 42 days (six weeks) of the date of the entry of the judgment or order appealed from." A.R.A.P. 4(a)(1). An appeal must be dismissed "if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court." A.R.A.P. 2(a)(1). An appellate court may not extend the time for filing a notice of appeal. A.R.A.P. 2(b).

If a motion in arrest of judgment, motion for new trial or motion for acquittal is timely filed "an appeal may be taken within 42 days (six weeks) after the denial or overruling of the motion." A.R.A.P. 4(b)(1).

A motion to reconsider or amend does not fall within that category of motions that tolls the time for appeal under the Alabama Rules of Appellate Procedure. See Yearby v. State, 451 So. 2d 425 (Ala. Crim.App.1984). Neither temporary Rule 20 of the Alabama Rules of Criminal Procedure nor the Alabama Rules of Appellate Procedure provides a procedure for the tolling of the time of appeal upon the filing of a Motion to Reconsider or a Motion to Amend such as those filed by this appellant.

For these reasons this appeal is dismissed.

APPEAL DISMISSED.

All the Judges concur.