MELVIN WILSON SHADOWEN V. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 21, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001147-DG
MELVIN WILSON SHADOWEN
APPELLANT
ON DISCRETIONARY REVIEW
FROM JEFFERSON CIRCUIT COURT
ACTION NO. 98-XX-000103
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, Melvin Shadowen, appeals from an
order of the Jefferson Circuit Court dismissing his appeal from
the Jefferson District Court on the grounds that it was untimely
filed.
As the Kentucky Supreme Court has held that weekend days
are included in computing the five-day period in which a motion
for a new trial must be filed pursuant to RCr 10.06, we affirm.
On September 8, 1998, appellant was convicted in a
bench trial in Jefferson District Court of Criminal Trespass in
the First Degree and Assault in the Fourth Degree.
On
September 15, 1998, appellant served upon the Commonwealth and
filed with the trial court a motion for a new trial.
The motion
was based upon the ground of ineffective assistance of counsel.
On September 21, 1998, the Jefferson District Court denied
appellant's motion.
Appellant filed a notice of appeal on September 23,
1998.
On December 2, 1998, the Commonwealth filed a motion to
dismiss on the grounds that the circuit court lacked jurisdiction
to hear the appeal as it was untimely filed pursuant to RCr
12.04(3).
On March 30, 1999, the circuit court granted the
Commonwealth's motion.
The court found that appellant's motion
for a new trial was not filed within five days of the verdict as
required by RCr 10.06, stating, "Although the Appellant has
contended that Saturdays and Sundays are excluded from the
computation of that time, the Kentucky Supreme Court has ruled
that such days are to be included, see Byrd v. Commonwealth, Ky.,
825 S.W.2d 272 (1992)."
Having determined that the motion for
new trial was untimely, the court found, per RCr 12.04(3), that
the time to file the notice of appeal was not extended and
therefore appellant was required to file his notice of appeal
within ten days of the judgment, September 8, 1998.
Thus the
court found that appellant's notice of appeal, filed
September 23, 1998, was untimely and granted the Commonwealth's
motion to dismiss.
Appellant filed a motion to reconsider, which
was denied on April 27, 1999.
Appellant filed a motion for
discretionary review which was granted by this Court on July 12,
1999.
This appeal followed.
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On appeal, appellant argues that the circuit court
erred in finding that his motion for a new trial, and hence, his
notice of appeal, were untimely.
Appellant contends that his
motion for a new trial was served upon the Commonwealth within
five days of entry of the verdict, as days are calculated
pursuant to RCr 1.10(a).
Therefore, RCr 12.04(3) required the
notice of appeal to be filed within ten days after entry of the
order denying the motion for new trial, rather than ten days
after the entry of the judgment of conviction.
Appellant
contends that his notice of appeal was timely, because the motion
for new trial was denied on September 21, 1998, and his notice of
appeal was filed on September 23, 1998, well within ten days.
RCr 12.04(3).
From a literal reading of RCr 1.10 as applied to RCr
10.06(1), it would appear that appellant’s interpretation is
correct.
RCr 1.10, "Time", states, in pertinent part:
Whenever these Rules do not provide otherwise
with respect to time, the following shall
apply:
(a)
In computing any period of time
prescribed or allowed by these Rules, by
order of court or by any applicable statute,
the day of the act, event or default after
which the designated period of time begins to
run is not to be included.
The last day of
the period so computed is to be included
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unless it is a Saturday, a Sunday or a legal
holiday.
When the period of time prescribed
or allowed is less than seven (7) days,
intermediate Saturdays, Sundays and legal
holidays shall be excluded in the
computation.
(emphasis added).
RCr 10.06(1) states:
The motion for a new trial shall be served
not later than five (5) days after return of
the verdict.
A motion for a new trial based
upon the ground of newly discovered evidence
shall be made within one (1) year after the
entry of the judgment or at a later time if
the court for good cause so permits.
(emphasis added).
As appellant's motion for new trial was not based on
newly discovered evidence, it was required to be served within
five days of the verdict.
Since this period of time is less than
seven days, it would appear from RCr 1.10(a) that intermediate
Saturdays and Sundays are excluded from the time computation.
Appellant was convicted on Tuesday, September 8, 1998.
was the "day of the act", this day is not included.
As this
RCr 1.10(a).
Appellant's time would begin to run on Wednesday, September 9,
1998.
Per RCr 1.10(a), Saturday, September 12, and Sunday,
September 13, would be excluded from the time computation.
-4-
Therefore, the fifth day would be Tuesday, September 15, 1998,
which is the day appellant served his motion for a new trial.
Thus, it would appear that appellant's motion for a new trial and
his notice of appeal were timely.
Unfortunately for appellant, however, we are bound by
the holding of the Kentucky Supreme Court in Byrd v.
Commonwealth, Ky., 825 S.W.2d 272 (1992).
Although the plain
language of RCr 1.10(a) appears to be in conflict with Byrd, the
Court included weekend days in computing a five-day period for a
motion for new trial, stating:
It was not reversible error for the trial
judge to decline to have an evidentiary
hearing on the motion for a judgment
notwithstanding the verdict or for a new
trial.
Here the motion was untimely filed on
December 7, because the jury verdict was
rendered on November 30, 1989 and the motion
for a new trial had to be served on or before
December 5, pursuant to RCr 10.06 and 10.24.
Marcum v. Commonwealth, Ky., 412 S.W.2d 241
(1967).
In any event there was no abuse of
discretion by the trial judge in overruling
the motions.
Byrd, 825 S.W.2d at 278.
(emphasis added).
Applying the Supreme Court's method of
computing time in Byrd to the instant case, Saturday,
-5-
September 12, and Sunday, September 13, would be included in
calculating the five-day period in which appellant was required
to serve his motion for a new trial.
Hence, the fifth day would
have been Sunday, September 13.
The court would have allowed the
filing on Monday, September 14.
As appellant's motion for a new
trial was served on Tuesday, September 15, it was, therefore,
untimely according to Byrd.
As the motion for new trial was
untimely, the notice of appeal was required to be filed within
ten days of the actual date of the judgment appealed from, which
was September 8, 1998.
RCr 12.04(3); Perkins v. Commonwealth,
Ky., 442 S.W.2d 310, 311 (1969).
As appellant filed his notice
of appeal on September 23, 1998, more than 10 days after the
judgment, the circuit court did not err in finding that it was
untimely filed, and did not err in granting the Commonwealth's
motion to dismiss.
For the foregoing reasons, the decision of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Russell D. Dougherty
Louisville, Kentucky
Karl Price
Louisville, Kentucky
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