Jensen v. State

312 N.W.2d 581, 1981 Iowa Sup. LEXIS 1090

• Court: Supreme Court of Iowa
• Decided: November 25, 1981
• Docket: 66464
• Status: Published

Opinions

ALLBEE, Justice.

Defendant pleaded guilty in January 1980 to charges of attempting to break and enter, a violation of section 708.10, The Code 1975; conspiracy to kidnap for ransom, section 719.1, The Code 1975; and two counts of escape, section 745.8, The Code 1975. Certain of these charges originated in Mills County and others in Page County. Defendant waived time for sentencing, and sentences were pronounced on January 11, 1980.

On April 9,1980, defendant filed an application for postconviction relief, see § 663A.3, The Code 1979, and on November 24, 1980, he filed a motion to correct sentence, see Iowa R.Crim.P. 23(5). The motion was denied by trial court on January 16, 1981, and the application was similarly denied on January 21, 1981.

On March 4, 1981, defendant’s attorney filed a notice informing the Page County attorney that defendant was appealing to this court “from the final judgment of sentence entered herein on March 2, 1980, and all adverse rulings inhering therein.” An identically worded notice of appeal, addressed to the Mills County attorney, was filed on March 5, 1981.

First, we observe that defendant was sentenced on January 11, 1980, not on March 2, 1980, as erroneously stated in his notices of appeal. In fact, there was no judgment, order or other paper filed in defendant’s case on March 2, 1980. But regardless of defendant’s error in specifying the wrong date, the appeal from his judgment of sentence is not timely because it was filed well over a year after that judgment was entered. See § 814.4, The Code 1979 (notice of appeal in a criminal case must be filed within sixty days after entry of judgment or order appealed from).

Failure to appeal on time is a jurisdictional defect. In Brock v. Dickinson County Board of Adjustment, 287 N.W.2d 566, 568 (Iowa 1981), we said:

There is an appellate jurisdiction which is a class of its own, and which is limited, in the sense that it is contingent or conditional upon timely appeal by statutory method and within statutory time. Failure of such condition terminates its potential power to acquire thereafter any jurisdiction to review the judgment below. Consent will not confer it, nor waiver revive it.

Id. (quoting In re Appeal of McLain, 189 Iowa 264, 269, 176 N.W. 817, 819 (1920)).

Although the State has not raised the issue of the timeliness of defendant’s appeal, we observe that this court has a duty to determine its own jurisdiction and to refuse, on its own motion, to entertain an appeal not authorized by rule. Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978).

Defendant’s appeal is not saved by the fact that it was filed within sixty days after trial court’s denial of his motion to correct sentence and his application for postconviction relief. Iowa R.App.P. 6(a) requires that a notice of appeal “shall specify .. . the decree, judgment, order or part thereof appealed from.” This rule governs perfection of appeals in civil cases, including postconviction proceedings, see § 663A.7, The Code 1981. An appeal from denial of a motion to correct sentence would be a criminal appeal, governed by section 814.4, which states: “An appeal is perfected by filing a written notice within sixty days after judgment or order with the clerk of the district court wherein the judgment or order was issued.” While this section does not expressly state any requirements as to content, we believe it is inherent in the nature of a notice of appeal that the appellant must specify which judgment he appeals from.

Here, defendant affirmatively specified that he was appealing from a March 2, 1980, judgment of sentence, a judgment in fact entered on January 11, 1980. He did not specify that he was appealing either from trial court’s denial of postconviction relief or from its denial of motion to correct sentence, nor did either of those rulings “inhere” in trial court’s earlier judgment of sentence. Therefore, we conclude that we are without jurisdiction to hear defendant’s appeal because it is untimely.

APPEAL DISMISSED.

All Justices concur except LARSON, J., who dissents.