State v. Byron W. de Weldon

Supreme Court of Rhode Island

State v. Byron W. de Weldon

91 A.3d 352, 2014 WL 1691345, 2014 R.I. LEXIS 47

CourtSupreme Court of Rhode Island

DecidedApril 25, 2014

Docket2007-290-C.A.

StatusUnpublished

This text of 91 A.3d 352 (State v. Byron W. de Weldon) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Byron W. de Weldon, 91 A.3d 352, 2014 WL 1691345, 2014 R.I. LEXIS 47 (R.I. 2014).

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Opinion

ORDER

On April 19, 2004, the defendant pleaded nolo contendere to third-degree sexual assault and possession of cocaine. On the same day, the defendant received a sentence of five years imprisonment for the sexual-assault count, all of which was suspended, with probation, and a consecutive one-year sentence for possession of cocaine, with thirty days to serve and the remainder suspended.

A little over a year later, on July 5, 2005, defendant filed a motion to vacate his plea. We note that a motion to vacate a plea after a defendant has been sentenced is procedurally improper. See State v. Castriotta, 80 A.3d 854, 855-56 (R.I.2013). The hearing justice apparently treated the motion as an application for postconviction relief, which she denied in a decision filed on May 18, 2006. A judgment reflecting that denial was entered on June 21, 2006. Although defendant purportedly appeals from that judgment, he did not file a notice of appeal.

On September 4, 2007, defendant filed a handwritten letter in which he wrote that he wished to appeal a ruling that the hearing justice made on August 8, 2007. At that time, no order had been entered memorializing any ruling from that date. On October 28, 2009, however, an order denying defendant’s application for postconviction relief was entered nunc pro tunc to August 8, 2007. Even if that order was the ruling being challenged in this appeal, the notice of appeal of that order was untimely.

The defendant did not appeal the denial of his motion to vacate his plea. Accordingly, we conclude that this matter is not properly before us. See Article I, Rule 3(a) of the Supreme Court Rules of Appellate Procedure; see also State v. Hollenbeck, 878 A.2d 992, 1020 (R.I.2005) (“ ‘Rule 3(a) makes clear that failure to file a timely notice of appeal renders any purported appeal invalid[.]’ * * * No rule exists *353 * * * in this jurisdiction that provides for the proper consideration of an issue on appeal for which a notice of appeal never was filed.” (quoting Martin v. Lilly, 505 A.2d 1156, 1159 (R.I.1986))). We therefore deny and dismiss the appeal. The papers are remanded to the Superior Court.

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ORDER

On April 19, 2004, the defendant pleaded nolo contendere to third-degree sexual assault and possession of cocaine. On the same day, the defendant received a sentence of five years imprisonment for the sexual-assault count, all of which was suspended, with probation, and a consecutive one-year sentence for possession of cocaine, with thirty days to serve and the remainder suspended.

A little over a year later, on July 5, 2005, defendant filed a motion to vacate his plea. We note that a motion to vacate a plea after a defendant has been sentenced is procedurally improper. See State v. Castriotta, 80 A.3d 854, 855-56 (R.I.2013). The hearing justice apparently treated the motion as an application for postconviction relief, which she denied in a decision filed on May 18, 2006. A judgment reflecting that denial was entered on June 21, 2006. Although defendant purportedly appeals from that judgment, he did not file a notice of appeal.

On September 4, 2007, defendant filed a handwritten letter in which he wrote that he wished to appeal a ruling that the hearing justice made on August 8, 2007. At that time, no order had been entered memorializing any ruling from that date. On October 28, 2009, however, an order denying defendant’s application for postconviction relief was entered nunc pro tunc to August 8, 2007. Even if that order was the ruling being challenged in this appeal, the notice of appeal of that order was untimely.

The defendant did not appeal the denial of his motion to vacate his plea. Accordingly, we conclude that this matter is not properly before us. See Article I, Rule 3(a) of the Supreme Court Rules of Appellate Procedure; see also State v. Hollenbeck, 878 A.2d 992, 1020 (R.I.2005) (“ ‘Rule 3(a) makes clear that failure to file a timely notice of appeal renders any purported appeal invalid[.]’ * * * No rule exists *353 * * * in this jurisdiction that provides for the proper consideration of an issue on appeal for which a notice of appeal never was filed.” (quoting Martin v. Lilly, 505 A.2d 1156, 1159 (R.I.1986))). We therefore deny and dismiss the appeal. The papers are remanded to the Superior Court.

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91 A.3d 352, 2014 WL 1691345, 2014 R.I. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-byron-w-de-weldon-ri-2014.

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