CHRISTOPHER GILBERT ON MOTION FOR DISCRETIONARY REVIEW v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 3, 1999; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001299-D
CHRISTOPHER GILBERT
v.
MOVANT
ON MOTION FOR DISCRETIONARY REVIEW
FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 97-XX-00005
COMMONWEALTH OF KENTUCKY
RESPONDENT
OPINION AND ORDER
DISMISSING MOTION FOR DISCRETIONARY REVIEW
* * * * * * * * * *
BEFORE:
BUCKINGHAM, HUDDLESTON, and KNOPF, Judges.
BUCKINGHAM, JUDGE.
Christopher Gilbert (Gilbert) moves this
court for an enlargement of time to file a motion for
discretionary review.
On April 26, 1999, the Harlan Circuit Court affirmed
Gilbert’s district court conviction.
On May 26, 1999, Gilbert’s
counsel mailed a motion for discretionary review of the circuit
court opinion to this court by U.S. Postal Service first-class
mail (first-class mail).
On May 27, 1999, this court received
the motion, but the motion was returned as untimely pursuant to
Kentucky Rule of Civil Procedure (CR) 76.20(2)(a).
Gilbert now moves the court to enlarge the time for
filing the motion for discretionary review.
He argues that CR
76.40(2) permits the court to file a document mailed first-class
but received by the court after the due date, if it was stamped
before the due date by the U.S. Postal Service.
We disagree.
CR 76.40(2) states:
To be timely filed, a document must be
received by the Clerk of the Supreme Court or
the Clerk of the Court of Appeals within the
time specified for filing, except that any
document shall be deemed timely filed if it
has been transmitted by United States
registered (not certified) or express mail,
or by other recognized mail carriers, with
the date the transmitting agency received
said document from the sender noted by the
transmitting agency on the outside of the
container used for transmitting, within the
time allowed for filing.
The clause "other recognized mail carriers" excludes
the U.S. Postal Service.
CR 76.40(2) clearly states that
documents received from the U.S. Postal Service beyond the due
date will only be filed if they were transmitted by express or
registered mail before the due date.
"Other recognized mail
carriers" refers to agencies other than the U.S. Postal Service.1
No one disputes that Gilbert’s counsel mailed the
motion by first-class mail on the last day for filing.
The fact
that the post office issued a receipt and stamped the outside of
the envelope with the date on which it was received is immaterial
since Gilbert’s counsel used first-class mail rather than
1
Counsel must even exercise caution in using the
other recognized carriers to ensure that the carrier complies
with the requirement that the container be marked on the outside.
Owens Chevrolet v. Fowler, Ky., 951 S.W.2d 580 (1997).
-2-
registered or express mail or another recognized carrier.
class mail does not qualify under the rule.
First-
If counsel chooses
to use first-class mail, counsel must allow adequate time for the
pleading to be received by the clerk of this court on or before
the due date.
A motion for discretionary review must be filed within
the time specified by CR 76.20.
CR 76.20(2)(d), Commonwealth ex
rel. Mason v. Hughes, Ky. App., 725 S.W.2d 865 (1987).
See also
Demoss v. Commonwealth, Ky. App., 765 S.W.2d 30 (1989)(extensions
for filing a notice of appeal may not be granted, as timeliness
is a mandatory and jurisdictional requirement).
For the foregoing reasons, this court ORDERS that
Gilbert’s motion for enlargement of time to file a motion for
discretionary review be DENIED.
The above-styled motion for
discretionary review is hereby ORDERED DISMISSED and STRICKEN
from the docket of this court.
ALL CONCUR.
ENTERED: September 3, 1999
/s/ David C. Buckingham
JUDGE, COURT OF APPEALS
COUNSEL FOR MOVANT:
COUNSEL FOR RESPONDENT:
Warren N. Scoville
London, Kentucky
A. B. Chandler III
Attorney General
Frankfort, Kentucky
Michael E. Pace
Asst. Harlan County Attorney
Harlan, Kentucky
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