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In re Carpenter

California Court of Appeals, Fourth District, Third Division
Dec 4, 2007
No. G039481 (Cal. Ct. App. Dec. 4, 2007)

Opinion


In re KEVIN DUANE CARPENTER on Habeas Corpus. G039481 California Court of Appeal, Fourth District, Third Division December 4, 2007

NOT TO BE PUBLISHED

Original proceedings; petition for a writ of habeas corpus to permit the filing of a late notice of appeal to challenge a judgment of the Superior Court of Orange County Super. Ct. No. 03HF1442, William R. Froeberg, Judge.

Appellate Defenders, Inc., and Neil Auwarter for Petitioner.

Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Respondent.

THE COURT:

Before Sills, P. J., Aronson, J., and Fybel, J.

OPINION

Following a court trial, petitioner Kevin Duane Carpenter was convicted of murder. He asked trial counsel to file a notice of appeal on his behalf which counsel agreed to do. Although a notice of appeal was promptly prepared it was never filed due to an admitted oversight within trial counsel’s office. Petitioner was told a notice of appeal had been filed and, until recently, believed an appeal was pending. A petition for relief for failure to file a timely notice of appeal has now been filed. (See In re Benoit (1973) 10 Cal.3d 72.)

The Attorney General was served with a copy of the petition. He advises us that he does not oppose the relief requested.

The principle of constructive filing of the notice of appeal should be applied in situations where, as here, a criminal defendant makes a timely request of trial counsel to file a notice of appeal, counsel advises defendant that a notice of appeal has been filed, but due solely to inadvertence of counsel and his support staff the notice of appeal is never filed. (In re Benoit, supra, 10 Cal.3d at pp. 87-88.) Relief here is plainly warranted.

Good cause appearing, and the Attorney General having effectively waived the necessity of filing an order to show cause, the petition is granted. On petitioner’s behalf, attorney Neil Auwarter is directed to prepare and file a notice of appeal in Orange County Superior Court case number 03HF1442, and the clerk of the superior court is directed to accept the filing if it is presented within 20 days of this opinion becoming final. In the interests of justice, this opinion is deemed final forthwith.


Summaries of

In re Carpenter

California Court of Appeals, Fourth District, Third Division
Dec 4, 2007
No. G039481 (Cal. Ct. App. Dec. 4, 2007)
Case details for

In re Carpenter

Case Details

Full title:In re KEVIN DUANE CARPENTER on Habeas Corpus.

Court:California Court of Appeals, Fourth District, Third Division

Date published: Dec 4, 2007

Citations

No. G039481 (Cal. Ct. App. Dec. 4, 2007)