State v. Cichowski

Supreme Court of Vermont

State v. Cichowski

571 A.2d 66, 153 Vt. 650, 1989 Vt. LEXIS 247

CourtSupreme Court of Vermont

DecidedDecember 22, 1989

DocketNo. 87-388

StatusPublished

Cited by2 cases

This text of 571 A.2d 66 (State v. Cichowski) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Cichowski, 571 A.2d 66, 153 Vt. 650, 1989 Vt. LEXIS 247 (Vt. 1989).

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Opinion

The State of Vermont has moved to dismiss this appeal on the ground that the notice of appeal was untimely filed. Appellant, citing In re Savo, 139 Vt. 527, 431 A.2d 482 (1981), seeks to avoid dismissal by having the court remand the case to the trial court for a determination of whether the appeal is “patently frivolous,” with the appeal being retained on the docket if found not to be “patently frivolous.” Id. at 529, 431 A.2d at 484. Unlike Savo, however, this appeal does not seek post-conviction relief herein for ineffective assistance of counsel for failure of trial counsel to appeal his underlying conviction in a timely manner. Rather, the instant appeal was itself untimely filed. Accordingly, we have no jurisdiction over the matter, and the appeal must be dismissed. See Reporter’s Notes, V.R.A.P. 4; In re Stevens, 149 Vt. 199, 200, 542 A.2d 256, 256-57 (1987); State v. Savo, 136 Vt. 330, 330-31, 388 A.2d 391, 392 (1978). If we were to grant appellant’s request to remand the case to the trial court for a determination of whether the appeal would be “patently frivolous,” see In re Savo, 139 Vt. at 529, 431 A.2d at 484, we would have to do so with every untimely appeal and would, in effect, emasculate the rule that establishes the time limit for the filing of appeals.

Appeal dismissed.

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The State of Vermont has moved to dismiss this appeal on the ground that the notice of appeal was untimely filed. Appellant, citing In re Savo, 139 Vt. 527, 431 A.2d 482 (1981), seeks to avoid dismissal by having the court remand the case to the trial court for a determination of whether the appeal is “patently frivolous,” with the appeal being retained on the docket if found not to be “patently frivolous.” Id. at 529, 431 A.2d at 484. Unlike Savo, however, this appeal does not seek post-conviction relief herein for ineffective assistance of counsel for failure of trial counsel to appeal his underlying conviction in a timely manner. Rather, the instant appeal was itself untimely filed. Accordingly, we have no jurisdiction over the matter, and the appeal must be dismissed. See Reporter’s Notes, V.R.A.P. 4; In re Stevens, 149 Vt. 199, 200, 542 A.2d 256, 256-57 (1987); State v. Savo, 136 Vt. 330, 330-31, 388 A.2d 391, 392 (1978). If we were to grant appellant’s request to remand the case to the trial court for a determination of whether the appeal would be “patently frivolous,” see In re Savo, 139 Vt. at 529, 431 A.2d at 484, we would have to do so with every untimely appeal and would, in effect, emasculate the rule that establishes the time limit for the filing of appeals.

Appeal dismissed.

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Bluebook (online)

571 A.2d 66, 153 Vt. 650, 1989 Vt. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cichowski-vt-1989.

Opinion

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