GREGORY COLLINS v. COMMONWEALTH OF KENTUCKY
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RENDERED: September 24, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001804-MR
GREGORY COLLINS
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY WINCHESTER, JUDGE
ACTION NO. 97-CR-00008
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER DISMISSING APPEAL
* * * * * * * * * *
BEFORE:
BUCKINGHAM, HUDDLESTON, and SCHRODER, Judges.
BUCKINGHAM, JUDGE.
Gregory Collins appeals from an order of the
Whitley Circuit Court revoking his twelve-month conditionally
discharged sentence.
As Collins’ appeal is untimely, we dismiss
it for lack of jurisdiction.
Collins was indicted in February 1997 for the offense
of second-degree criminal possession of a forged instrument.
(KRS 516.060).
On March 4, 1998, he pled guilty to an amended
charge of third-degree criminal possession of a forged instrument
(KRS 516.070), a misdemeanor, and was sentenced to twelve months
in the county jail.
This sentence, however, was conditionally
discharged for two years on several conditions, including one
that Collins pay $900 restitution to the Whitley Circuit Clerk by
April 3, 1998.
On April 23, 1998, the Commonwealth filed a motion to
revoke Collins’ conditionally discharged sentence on the ground
that he failed to pay restitution.
On May 5, 1998, the court
entered an agreed order continuing the probation revocation
hearing to July 6, 1998.
When the case was called on that date,
Collins’ attorney was present but Collins was not.
After
conferring with the prosecutor and Collins’ attorney, the trial
judge stated that Collins’ sentence would be reinstated for his
failure to pay restitution.
The order revoking Collins’
probation was entered on the following day, July 7, 1998, and the
clerk entered a notation in the record that notice of entry of
the order had been sent by first-class mail to all counsel of
record on that same day.
On July 21, 1998, Collins’ attorney
filed a notice of appeal.1
At the time this appeal was filed, Kentucky Rule of
Criminal Procedure (RCr) 12.04(3) provided in pertinent part that
“[t]he time within which an appeal may be taken shall be ten (10)
days after the date of entry of the judgment or order from which
it is taken, subject to Rule 12.06 . . . .”2
As the notice of
appeal filed herein was filed fourteen days after the order was
entered and the clerk made the notation in the criminal docket
1
The attorney who represented Collins at the trial court
level and who filed the notice of appeal is not the same attorney
representing Collins before this court.
2
This rule has since been amended to allow an appeal to be
taken thirty (30) days after the entry of the judgment or order
from which it is taken.
-2-
pursuant to RCr 12.06, it was untimely.
It is well established
that “[t]he appellate court lacks jurisdiction unless the notice
is seasonably filed.”
DeMoss v. Commonwealth, Ky. App., 765
S.W.2d 30, 32 (1989).
Because we lack jurisdiction to consider
this appeal, it must be dismissed.3
It is hereby ORDERED that this appeal is DISMISSED.
ALL CONCUR.
ENTERED: September 24, 1999
/s/ David C. Buckingham
JUDGE, COURT OF APPEALS
3
A motion for a belated appeal has not been filed on
Collins’ behalf. Such a motion may or may not have merit.
-3-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Wettle
Appellate Public Advocate
Louisville, KY
Albert B. Chandler III
Attorney General
Gregory C. Fuchs
Assistant Attorney General
Frankfort, KY
-4-
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