Opinion
No. 247, Initial Term, 1967.
Decided August 2, 1967.
APPEAL — Dismissal For Failure To File Within Thirty Days. There is no provision in the Rules, or elsewhere, authorizing the lower court to extend the time within which an order for appeal to the Court of Special Appeals shall be filed. pp. 577-578
Where appellant's appeal was not filed within the thirty-day period prescribed by Rule 1012, the State's motion to dismiss was granted, without prejudice to appellant's right to pursue other legal remedies, including those available to him under the Uniform Post Conviction Procedure Act. Rule 1035 b 2. p. 578
Decided August 2, 1967.
Appeal from the Circuit Court for Prince George's County (BOWIE, J.).
Charles Daniel Cornwell was convicted in a jury trial of burglary, robbery with a deadly weapon, and assault and battery; and, from the judgments entered thereon, he appeals. The State moves to dismiss the appeal.
Motion to dismiss appeal granted.
Note: Certiorari denied, Court of Appeals of Maryland, October 23, 1967.
The cause was argued before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and PRETTYMAN, J., Associate Judge of the First Judicial Circuit, specially assigned.
J. Bowie Lillard for appellant.
Frank A. DeCosta, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, and James H. Taylor, Assistant State's Attorney for Prince George's County, on the brief, for appellee.
The Appellant, Charles Daniel Cornwell, was convicted by a jury in the Circuit Court for Prince George's County of burglary, robbery with a deadly weapon, and assault and battery. Sentences and judgments thereon were entered on June 27, 1966, and the Order for Appeal was filed on August 19, 1966.
The State, in its brief, has moved to dismiss the appeal for the reason that the Order for Appeal was not filed within the period prescribed by Maryland Rule 1012.
The Appellant contends that the time for appeal was extended by the trial judge when he learned that no timely appeal had been filed. There is no provision in the Maryland Rules, or elsewhere, authorizing the lower court to extend the time within which an Order for Appeal to this Court shall be filed. Accordingly, the State's Motion to Dismiss the Appeal will be granted in accordance with the provisions of Maryland Rule 1035 b 2.
We are mindful that a number of questions raised by the Appellant, such as incompetency of counsel, double jeopardy, perjured testimony and denial of due process, would require an evidentiary hearing and, therefore, could not properly be passed upon in this appeal.
Accordingly, the Motion to Dismiss is being granted without prejudice to the Appellant's rights to pursue the remedies provided in the Uniform Post Conviction Procedure Act (Code (1957), Art. 27, § 645 A) and any other legal remedies available to him.
Motion to dismiss appeal granted.