Charles E. Howard v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: January 21, 2014
• Docket: 53A01-1304-CR-164
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Jan 21 2014, 10:11 am any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

CHARLES E. HOWARD GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana

CYNTHIA L. PLOUGHE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

CHARLES E. HOWARD, ) ) Appellant-Defendant, ) ) vs. ) No. 53A01-1304-CR-164 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MONROE CIRCUIT COURT The Honorable Mary Ellen Diekhoff, Judge Cause No. 53C05-0907-FB-582

January 21, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge CASE SUMMARY

Appellant-Defendant Charles Howard pled guilty to Class C felony burglary and

received an eight-year sentence. Howard filed a motion for jail time credit, which the trial

court denied. Howard then filed a motion to correct error, which the trial court dismissed the

same day. Forty-eight days later, Howard filed his notice of appeal from the trial court’s

denial of his motion to correct error. Concluding that Howard’s notice of appeal was

untimely, thereby denying this court jurisdiction, we dismiss.

FACTS AND PROCEDURAL HISTORY

On September 30, 2012, Howard pled guilty to Class C felony burglary and received

an eight-year sentence. On January 4, 2013, Howard filed a motion for credit time. On

January 23, 2013, the trial court denied Howard’s motion for credit time. On February 21,

2013, Howard filed a motion to correct error, which motion the trial court denied the same

day. On April 10, 2013, Howard filed his notice of appeal.

DISCUSSION AND DECISION

The State contends that Howard’s untimely notice of appeal deprives this court of

jurisdiction over his appeal, requiring its dismissal. Indiana’s appellate rules require that a

notice of appeal be filed within thirty days after the entry of final judgment. Ind. Appellate

Rule 9(A)(1). In this case, the trial court denied Howard’s motion to correct error on

February 21, 2013, and his notice of appeal from the denial was not filed until April 10,

2013, forty-eight days later. This court has held repeatedly that the untimely filing of a notice

of appeal deprives this court of subject matter jurisdiction over an appeal and subjects it to

2 dismissal. See Tarrance v. State, 947 N.E.2d 494, 496 (Ind. Ct. App. 2011) (in case where

appellant filed untimely notice of appeal, concluding that “[b]ecause we lack subject matter

jurisdiction to consider Tarrance’s appeal, we dismiss”); Sewell v. State, 939 N.E.2d 686

(Ind. Ct. App. 2010) (in case where appellant merely sent handwritten letter to the trial court

requesting an appeal, concluding that appeal should be dismissed for lack of subject matter

jurisdiction”). Because Howard’s notice of appeal was untimely, we must dismiss his appeal

for lack of subject matter jurisdiction.

Dismissed.1

MATHIAS, J., and PYLE, J., concur.

1 In an order to be issued contemporaneously with this memorandum decision, we deny the State’s previously-filed motion to dismiss as moot.