A.M. v. Com., --S.W.3d—(Ky. App. 2007), 2007 WL 491160 (Ky.App) designated to be published.
Issue: Whether the circuit court erred in sua sponte dismissing an appeal based on untimely perfection of the appeal. The Court held yes, it was error because the juvenile lost his right of appeal solely due to his prior counsel’s negligence.
Facts:
A.M., a minor, was charged with being a habitual truant and being beyond control of his mother. After a detention hearing, the district court found A.M. in contempt and sentenced him to thirty days in detention. Later, the district court found A.M. in contempt again and sentenced him to two weeks in detention. Notice of appeal was filed, and the district court entered an order allowing A.M. to proceed in forma pauperis on appeal. A.M.’s case was assigned to an attorney, who entered his appearance. Counsel determined that he needed an extension of time, and drafted a request for a thirty day extension. Counsel then asked an attorney in the London DPA office to file said extension on November 22, 2004, the same day the statement of appeal was due. However, unbeknownst to counsel, the request was never filed. Counsel then filed his statement of appeal on December 22, 2004. In April 2005 counsel filed a motion to substitute counsel.
In November 2005, new counsel then filed a motion to review or reverse the district court’s contempt order, alleging that the Commonwealth’s failure to file a counterstatement should be deemed a confession of error. The Commonwealth did not respond or appear for the hearing. The circuit court sua sponte dismissed the appeal, ruling that the appeal was not timely perfected. A.M. then filed a motion to alter, amend, grant an enlargement of time, or grant belated appeal. The Commonwealth did not respond, and the circuit court denied the motion. The Court of Appeals granted discretionary review.
Analysis:
Wine v. Commonwealth, 694 S.W.2d 689 (Ky. 1985) is controlling and entitles A.M. to have his appeal reinstated. Since A.M’s right of appeal was lost solely due to the negligence of his prior counsel, he is entitled to a belated appeal.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com
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