Opinion
February 13, 1989.
Practice, Criminal, Appeal, New trial, Assistance of counsel. Constitutional Law, Appeal. Due Process of Law, Appeal.
Bruce R. Taub for the defendant. Robert J. Bender, Assistant District Attorney, for the Commonwealth.
The Appeals Court dismissed the defendant's appeal because of his failure to comply with the time limitation for filing notice of appeal, contained in the Massachusetts Rules of Appellate Procedure. 25 Mass. App. Ct. 1001, 1002 (1988). We granted the defendant's application for further appellate review. We agree with the Appeals Court and dismiss the defendant's appeal.
The outcome of this case is controlled by Commonwealth v. Cowie, ante 119 (1988), decided today. In each case the defendant's trial counsel failed to file a timely notice of appeal and thus the defendant lost his right to a direct appeal of his conviction. The central issue in both cases is whether, under Evitts v. Lucey, 469 U.S. 387 (1985), due process requires that the defendant's direct appeal be reinstated. Because we concluded in Commonwealth v. Cowie, supra at 123, that a motion for a new trial under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979), and a subsequent appeal from an adverse ruling thereon, fully comports with due process, we dismiss the defendant's appeal.
So ordered.