DEMETRIUS DAVIS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 8, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001298-MR
DEMETRIUS DAVIS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 04-CR-002371
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
JOHNSON AND WINE, JUDGES; MILLER,1 SPECIAL JUDGE.
JOHNSON, JUDGE:
Demetrius Davis has appealed from the May 2,
2005, order of the Jefferson Circuit Court which dismissed his
motion for reconsideration of a bond assignment.
Having
determined that Davis’s notice of appeal was untimely filed, we
must dismiss his appeal.
Davis was indicted by a Jefferson County grand jury on
1
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
August 19, 2004, for murder,2 assault in the first degree,3 and
burglary in the first degree.4
His bond was originally set as a
cash bond in the amount of $250,000.00.
Davis filed a motion on
September 3, 2004, requesting a reduction of his bond.
The
trial court entered an order on September 16, 2004, amending the
bond to a $250,000.00 cash bond or a $350,000.00 property bond.
On January 4, 2005, Davis’s sister posted a cash bond
in the amount of $250,000.00 and Davis was released from
custody.
Davis’s private attorney moved to withdraw from the
case because he had not been paid, and because he needed to hire
an additional attorney since Davis’s case was eligible for the
death penalty.
A hearing was held in which the trial court
questioned Davis, his sister, and counsel as to the source of
the cash bond and whether the trial court should assign a
portion of Davis’s $250,000.00 cash bond to his attorney.
The
trial court was informed that the cash came from various
individuals and held a hearing on February 11, 2005, in order to
allow any party who had an interest in the cash that had been
posted for the bond to contest the assignment.
When no one
appeared, the trial court entered an order on February 11, 2005,
2
Kentucky Revised Statutes (KRS) 507.020.
3
KRS 508.010.
4
KRS 511.020.
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changing Davis’s bond to a $200,000.00 cash bond and releasing
$50,000.00 of the bond to his attorney.5
On March 7, 2005, Davis entered into a plea agreement
with the Commonwealth under which he pled guilty to manslaughter
in the second degree,6 assault in the second degree,7 and
burglary in the second degree.8
He was sentenced on April 13,
2005, to ten years’ imprisonment.
On April 21, 2005, Davis
filed a motion for reconsideration of the bond assignment.
trial court denied the motion on May 2, 2005.9
The
Davis tendered a
notice of appeal to this Court on June 3, 2005; however, the
notice of appeal was not filed until June 17, 2005, when Davis
paid the $125.00 filing fee.
Pursuant to RCr10 12.04, “[t]he time within which an
appeal may be taken shall be thirty (30) days after the date of
entry of the judgment or order from which it is taken, subject
5
After Davis was sentenced, the remaining $200,000.00 was seized pursuant to
a warrant from the United States District Court for the Western District of
Kentucky.
6
KRS 507.040.
7
KRS 508.020.
8
KRS 511.030.
9
There are actually two motions for reconsideration and two orders filed in
the record on appeal. On their face, each motion and order are exactly the
same. The first motion was filed April 21, 2005, and the order denying was
entered May 2, 2005. The subsequent motion was filed and denied on May 5,
2005.
10
Kentucky Rules of Criminal Procedure.
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to Rule 12.06[.]”
CR11 73.02(2), which is applicable in criminal
actions pursuant to RCr 12.02, provides that “[t]he failure of a
party to file timely a notice of appeal . . . shall result in a
dismissal[.]”12
The filing fee for an appeal must be paid to the
clerk of the circuit court at the time the notice of appeal is
filed.13
In this case, the order denying the motion for
reconsideration of the bond assignment was entered by the court
on May 2, 2005.
While the Commonwealth states that Davis filed
his notice of appeal from the final judgment and sentence
entered on April 13, 2005, Davis’s notice of appeal states he is
appealing the “final judgment . . . which assigned the bond
without his, or the surety’s consent[,]” and was entered on May
2, 2005.
Therefore, the notice of appeal in this case was from
the order entered on May 2, 2005, and should have been filed no
later than June 1, 2005.
While Davis tendered his notice on
June 3, 2005, it was not filed until the filing fee of $125.00
was paid on June 17, 2005, which is well outside the time for
filing the appeal.
11
The failure to timely file a notice of
Kentucky Rules of Civil Procedure.
12
See Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918 (Ky.App. 1998); and
Burchell v. Burchell, 684 S.W.2d 296 (Ky.App. 1984).
13
CR 73.02(1)(b). (No motion was filed to allow the appeal to proceed
without payment of costs. CR 5.05(4).)
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appeal deprives this Court of jurisdiction and leaves us with no
choice but to dismiss the appeal.14
For the foregoing reasons, the motion of the
Commonwealth to dismiss the above-styled appeal is GRANTED and
this appeal is ORDERED dismissed as untimely filed.
ALL CONCUR.
ENTERED:
/s/ Rick A. Johnson
JUDGE, COURT OF APPEALS
December 8, 2006
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William Ayers
Louisville, Kentucky
Gregory D. Stumbo
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
14
See Rainwater v. Jasper & Jasper Mobile Homes, Inc., 810 S.W.3d 63 (Ky.App.
1991) (citing CR 73.02(2); and Burchell, 684 S.W.2d at 296).
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