GAMBILL (CHARLES CORBIT) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CHARLES CORBIT GAMBILL
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE KIMBERLEY CORNETT CHILDERS, JUDGE
ACTION NO. 04-CR-00110
COMMONWEALTH OF KENTUCKY
OPINION AND ORDER
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BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI, 1 SENIOR JUDGE.
TAYLOR, JUDGE: Charles Corbit Gambill brings this pro se appeal from a
December 11, 2006, Order of the Magoffin Circuit Court denying his motions for
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
default judgment, findings of fact, and to vacate an order dated July 26, 2006. We
On October 4, 2005, appellant pleaded guilty to possession of a
controlled substance in the first degree and received a probated sentence.
Subsequently, the Commonwealth moved to revoke appellant’s probation alleging
that appellant failed drug tests and was consorting with known felons. Appellant
stipulated to violating his probation in return for the Commonwealth’s
recommendation that appellant’s probation not be revoked. In a July 26, 2006,
order, the court extended appellant’s probation for an additional year and ordered
him to long-term drug rehabilitation.
On September 18, 2006, appellant filed a pro se motion to vacate the
July 26, 2006, order pursuant to Kentucky Rules of Criminal Procedure (RCr)
11.42. When the Commonwealth failed to respond, appellant filed motions for
default judgment and for findings of fact. On December 11, 2006, the court
entered an order denying appellant’s motions. Appellant then tendered a notice of
appeal on January 8, 2007, but failed to attach the required filing fee. The circuit
court clerk informed appellant that his notice of appeal would not be filed of record
unless the fee was paid or waived. Some eighteen days later, on January 26, 2007,
appellant filed a motion to proceed in forma pauperis. The motion to proceed in
forma pauperis was granted by the court on June 12, 2007, and the clerk entered
the notice of appeal upon that date.
The time for filing a notice of appeal pursuant to Kentucky Rules of
Civil Procedure (CR) 73.02(2) is both mandatory and subject to strict compliance.
Fox v. House, 912 S.W.2d 450 (Ky.App. 1995). CR 73.02(1)(b) states if a notice
of appeal is “timely tendered and accompanied by a motion to proceed in forma
pauperis supported by an affidavit, a notice of appeal or cross-appeal shall be
considered timely but shall not be filed until the motion to proceed in forma
pauperis is granted.” In this case, appellant had until January 10, 2007, to timely
file his notice of appeal. Although appellant tendered his notice of appeal within
the appropriate time period, he did not timely tender a filing fee or a motion to
proceed in forma pauperis as required by CR 73.02(1)(b). It was not until some
sixteen days after the notice of appeal’s filing deadline of January 10, 2007, that
appellant filed a motion to proceed in forma pauperis. In fact, appellant filed the
motion to proceed in forma pauperis on January 26, 2007. As the motion to
proceed in forma pauperis was untimely filed, appellant’s notice of appeal is
considered “tendered” on that date and, likewise, is untimely. CR 73.02(1)(b).
As such, dismissal of the instant appeal is mandated.
For the foregoing reasons, it is ORDERED that Appeal No. 2007-CA001208-MR be and is hereby DISMISSED as untimely.
ENTERED: October 3, 2008
/s/ Jeff S. Taylor
Judge, Court of Appeals
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles Corbit Gambill, Pro Se
West Liberty, Kentucky
Attorney General of Kentucky
Julie R. Scott
Assistant Attorney General