WILLIAM DILL v. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 10, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000275-MR
WILLIAM DILL
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 03-CR-00306
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
DISMISSING APPEAL
** ** ** ** **
BEFORE:
BARBER AND McANULTY, JUDGES; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
William Dill (Dill), pro se, brings this
appeal of an order of the McCracken Circuit Court, entered
January 18, 2005, denying his pro se motion to reconsider the
denial of his motion to vacate his five-year sentence arising
out of an unconditional guilty plea to second-degree trafficking
in a controlled substance (Lortab) and third-degree trafficking
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
in a controlled substance (Xanax),2 pursuant to Kentucky Rules of
Criminal Procedure (RCr) 11.42.
Because Dill did not timely
file his notice of appeal, we have no jurisdiction to consider
the appeal.
Therefore, it must be dismissed.
On December 14, 2004, the order summarily denying
Dill’s RCr 11.42 motion was entered.
Seventeen days later, on
December 31, 2004, Dill mailed to the court clerk a motion for
reconsideration of the December 14, 2004, order.
Dill’s motion
for reconsideration was summarily denied by the trial court by
order entered January 18, 2005.
Dill appealed this denial by
mailing his notice of appeal to the court clerk on January 24,
2005.
Pursuant to RCr 11.42(8) and 12.04, the notice of
appeal from the denial of Dill’s RCr 11.42 motion was due by
January 13, 2005, which was within thirty days of the entry of
the order.
days.
Dill did not file a notice of appeal within thirty
Instead, Dill mailed a motion for reconsideration to the
court clerk within seventeen days.
Assuming for sake of
argument that this motion should be construed as a motion to
alter, amend or vacate pursuant to Kentucky Rules of Civil
Procedure (CR) 59.05, timely service of the motion not later
than ten days after entry of the final judgment tolls the time
2
Kentucky Revised Statutes 218A.1413 (class D felony) and 218A.1414 (class A
misdemeanor). Dill was also indicted as a first-degree persistent felony
offender. KRS 532.080. As a result of the plea, this charge was dismissed.
-2-
for filing a notice of appeal.
See CR 73.02(1)(e).
As Dill’s
motion for reconsideration was mailed seventeen days after entry
of the December 14, 2004, order denying his RCr 11.42 motion, it
was not served within ten days.
As such, it was not timely
served so as to toll the running of the thirty-day period for
filing an appeal from the December 14, 2004, order.
Even
assuming that Dill’s notice of appeal properly referenced that
it was appealing the December 14, 2004, order denying the RCr
11.42 motion, its mailing on January 24, 2005, was outside the
thirty-day time limit.
As we lack jurisdiction to consider the
appeal, it must be dismissed.
See United Tobacco Warehouse v.
Southern States Frankfort Cooperative, Inc., 737 S.W.2d 708, 710
(Ky.App. 1987).
It is hereby ORDERED that this appeal be, and it is,
DISMISSED.
ALL CONCUR.
ENTERED:
_February 10, 2006
____/s/ John Miller_________
SENIOR JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
William E. Dill, pro se
Fredonia, Kentucky
Gregory D. Stumbo
Kentucky Attorney General
Robert E. Prather
Assistant Attorney General
Frankfort, Kentucky
-3-
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