In the Matter of W.S., Alleged to Be Seriously Mentally Impaired

• Court: Court of Appeals of Iowa
• Decided: March 6, 2019
• Docket: 18-0702
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-0702 Filed March 6, 2019

IN THE MATTER OF W.S., Alleged to Be Seriously Mentally Impaired,

W.S., Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Paul D. Miller,

Judge.

W.S. appeals from an order finding he remains seriously mentally impaired.

APPEAL DISMISSED.

Cami Eslick of Eslick Law, Indianola, for appellant.

Thomas J. Miller, Attorney General, and Gretchen Kraemer, Assistant

Attorney General, for appellee State.

Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2

POTTERFIELD, Presiding Judge.

On March 20, 2018, the district court found W.S. remained seriously

mentally impaired. On April 20, W.S. appealed the order, arguing the State failed

to prove he lacked sufficient judgment to make reasonable decisions about his

treatment and there was not substantial evidence of dangerousness because there

was no evidence of a recent overt act, attempt, or threat.

Before this case was transferred to our court, the supreme court raised on

its own motion the issue of jurisdiction after it appeared notice of appeal might

be untimely. See Root v. Toney, 841 N.W.2d 83, 87 (Iowa 2013) (noting court is

to address jurisdictional issue of timeliness of appeal before reaching merits even

if parties do not raise the issue). W.S. was ordered to file a statement concerning

whether this court has jurisdiction to hear the appeal, and the State was permitted

to file a response. Counsel for W.S. states that she “had neglected to take into

account that there are [thirty-one] days in January” and argues we should excuse

her neglect in filing the appeal one day late and consider the appeal on its merits.1

The State argues we do not have jurisdiction to consider this appeal. The supreme

court ordered the jurisdictional issue be considered with the appeal and transferred

the appeal to our court.

Iowa Rule of Appellate Procedure 6.101 provides that notices of appeal

must be filed within thirty days after the filing of the final order or judgment. Timely

notice of appeal is jurisdictional. Jensen v. State, 312 N.W.2d 581, 582 (Iowa

1 We note that the number of days in January did not affect the timeliness of the notice of appeal here, although the number of days in March does affect the calculation of thirty days. 3

1981). It was within W.S.’s control to appeal in a timely fashion. Counsel’s mistake

is not an extraordinary circumstance like those for which we have previously

granted delayed appeals. See, e.g., In re L.H., 890 N.W.2d 333, 339 (Iowa Ct.

App. 2016) (allowing delayed appeal where the self-represented appellant filed the

appeal in the wrong court and the appeal would have been timely if filed within the

correct court). Because the appeal was not timely filed, we lack jurisdiction to

consider the merits of the appeal. We dismiss the appeal for lack of jurisdiction.