People v. Parks.
2021 COA 61. No. 21CA0428. Criminal Procedure—Service of Papers—Computation and Extension of Time.
April 29, 2021
Defendant filed a pro se petition for postconviction relief under Crim. P. 35(c) challenging the proportionality of his sentence. In August 2020, the district court denied the petition without a hearing and sent the order to two attorneys still listed in the district court file as counsel of record. Defendant was not served a copy of the order. In February 2021, the district court received a letter from defendant inquiring as to the status of the petition. The court entered an order explaining it had denied the petition several months earlier. Again, this order was sent to the listed counsel of record and not defendant. One of the attorneys of record filed a motion requesting to be removed as counsel of record and forwarded a copy of the orders to defendant. Five weeks later, defendant filed his notice of appeal.
The deadline to appeal a final judgment in a criminal case is 49 days after the entry of the judgment or order. The time may be extended by up to 35 days upon a finding of excusable neglect. The time may also be expanded upon a finding of good cause shown. Here, the trial court sent its orders to two attorneys who had ceased to represent defendant as a matter of law. The trial court failed to remove defendant’s former attorneys as counsel of record and to discharge its obligation to serve defendant with the orders. Thus, defendant could not have known that the time to file an appeal had commenced. Once he was served, he filed an appeal within a reasonable time. Accordingly, there was ample good cause to accept the late filing.
The motion for extension of time was granted and the notice of appeal was accepted as timely filed.