POTTS (ANTHONY) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 02-CR-00051
COMMONWEALTH OF KENTUCKY
OPINION AND ORDER
** ** ** ** **
BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI, 1 SENIOR JUDGE.
TAYLOR, JUDGE: Anthony Potts brings this pro se appeal from a June 6, 2007,
Order of the Montgomery Circuit Court denying appellant’s Kentucky Rules of
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
Criminal Procedure (RCr) 11.42 motion to vacate sentence without an evidentiary
hearing. We dismiss.
Following a jury trial, appellant was found guilty of three counts of
first-degree possession of a controlled substance and with being a first-degree
persistent felony offender. He was sentenced to a total of twenty-years’
imprisonment. A direct appeal of his conviction was affirmed by Kentucky
Supreme Court in Appeal No. 2003-SC-000500-MR.
Subsequently, appellant filed the underlying RCr 11.42 motion to
vacate his sentence of imprisonment. By order entered June 6, 2007, the circuit
court denied appellant’s RCr 11.42 motion without appointment of counsel and
without an evidentiary hearing. The docket also reveals that the clerk entered a
notation of service of the order also on June 6, 2007. On July 9, 2007, appellant
filed a motion to proceed in forma pauperis on appeal. Also, a notice of appeal
was noted “tendered” by the Montgomery Circuit Court Clerk on the same day,
July 9, 2007.
By order entered July 16, 2007, the circuit court granted the motion to
proceed in forma pauperis, and the notice of appeal was entered also on July 16,
2007. For the reasons hereinafter delineated, we dismiss this appeal as the notice
of appeal was not timely filed under Kentucky Rules of Civil Procedure (CR)
Under CR 73.02(2), the time for filing a notice of appeal is considered
mandatory and subject to strict compliance. Fox v. House, 912 S.W.2d 450
(Ky.App. 1995). The failure to timely file the notice of appeal deprives the
appellate court of jurisdiction. Burchell v. Burchell, 684 S.W.2d 296 (Ky.App.
1984). CR 73.02(1)(b) provides that 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 . . . shall be considered timely but shall not be filed until the
motion to proceed in forma pauperis is granted.”
In this case, the order denying appellant’s RCr 11.42 motion was
entered June 6, 2007; thus, the notice of appeal filing deadline was July 6, 2007.
Appellant filed his motion to proceed in forma pauperis on July 9, 2007, and, his
accompanying notice of appeal was also noted by the clerk “submitted” on July 9,
2007. The notice of appeal was subsequently filed July 16, 2007.
From the above facts, it is clear that appellant filed the motion to
proceed in forma pauperis and tendered the notice of appeal some three days after
the notice of appeal’s filing deadline. Stated differently, appellant’s notice of
appeal was considered “tendered” on the date the motion to proceed in forma
pauperis was filed and, likewise, is considered untimely under CR 73.02(1)(b).
Consequently, dismissal of this appeal is mandated.
Now therefore be it ORDERED that Appeal No. 2007-CA-001414MR 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:
Anthony Monroe Potts, Pro Se
Sandy Hook, Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General