State v. Smith
Annotate this CaseState v. Ortiz created judicial exceptions to the general rule barring untimely appeals. In the instant case, Appellant, who was sixteen years old at the time, pleaded nolo contendere to first-degree felony murder, aggravated kidnapping, and other crimes. The district court sentenced Appellant to life sentences for the murder and aggravated kidnapping convictions. Appellant asserted that he told his appointed counsel (Attorney) after sentencing that he wanted to file an appeal. Attorney filed a motion to modify Appellant's sentence but never filed a direct appeal of Appellant’s sentence. The motion to modify was overruled. Nearly two decades later, Appellant filed a pro se notice of appeal, a motion for an out-of-time appeal, and a motion for appointed counsel. The district court denied the motion, finding that the passage of time was a bar to Appellant’s appeal. Appellant appealed, arguing that he should be allowed to bring his direct appeal out of time, pursuant to Ortiz, because Attorney did not file an appeal despite Appellant’s direction to do so. The Supreme Court reversed, holding that the case was presented to the Court without adequate factual findings. Remanded to the district court to make the requisite findings.
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