Summary
dismissing appeal as untimely, where applicant mistakenly filed notice of appeal — "not an adequate substitute for an application for the allowance of an appeal"
Summary of this case from Sturgis v. KanterOpinion
No. 79-672.
Argued March 6, 1980.
Decided October 17, 1980.
Appeal from the Superior Court, District of Columbia, Robert M. Scott, J.
Gerald M. Kane, pro se.
Leo N. Gorman, Asst. Corp. Counsel, Washington D.C., with whom Judith W. Rogers, Corp. Counsel, and Richard W. Barton, Deputy Corp. Counsel, Washington D.C., at the time the case was argued, were on the brief, for appellee.
Before GALLAGHER, NEBEKER and MACK, Associate Judges.
Mr. Kane purports to appeal from a trial court adjudication finding him guilty of criminal contempt through the summary proceedings provided in Super.Ct.Cr. R. 42(a). Mr. Kane, having been fined $25.00, filed his notice of appeal per D.C.App. R. 4 II(b)(1). We hold that Mr. Kane did not have a right of appeal but was required to proceed by way of an application for the allowance of an appeal pursuant to D.C. Code 1973, § 11-721(c) and D.C.App. R. 6(a). Accordingly, this court is without jurisdiction. The appeal is dismissed.
On June 8, 1979, Mr. Kane arrived late for an appearance before Judge Scott who was sitting on Traffic Control Calendar. Upon questioning Mr. Kane as to his whereabouts, Judge Scott was unsatisfied with the explanation and found that failure to appear promptly "was either a deliberate and wilfull failure to appear or one resulting from reckless disregard by Mr. Kane of his professional obligation." As observed, a $25.00 fine was imposed. An order dated June 8, 1979, was entered by the court and was docketed June 11, 1979. On June 18, 1979, a notice of appeal was filed. D.C. Code 1973, § 11-721(c) provides:
Review of judgments of the Small Claims and Conciliation Branch of the Superior Court of the District of Columbia and of judgments in the Criminal Division of that court where the penalty imposed is a fine of less than $50 for an offense punishable by imprisonment of one year or less, or by fine of not more than $1,000, or both, shall be by application for the allowance of an appeal, filed in the District of Columbia Court of Appeals.
This statute requires that where the fine imposed is less than $50.00 and the offense is one that is punishable by either imprisonment of one year or less or a fine of not more than $1,000.00, or both a fine and imprisonment, an application for an allowance to appeal must be filed. The fine of $25.00 meets the first part of the statute's criteria. The second part concerns the maximum punishment to which appellant could have been subjected for an adjudication for contempt under Super.Ct.Cr. R. 42(a).
Summary disposition authorized by Super.Ct.Cr. R. 42(a) is statutorily and constitutionally limited to a maximum imprisonment which may be imposed to six months. See D.C. Code 1973, § 16-705(b); Codispoti v. Pennsylvania, 418 U.S. 506, 511-12, 94 S.Ct. 2687, 2690-2691, 41 L.Ed.2d 912 (1974); In re Evans, D.C.App., 411 A.2d 984, 991 (1980). In addition, under such summary procedures the maximum fine permissible is $300.00. See D.C. Code 1973, § 16-705(b); Dobkin v. District of Columbia, D.C.App., 194 A.2d 657, 659-60 (1963). Consequently, it is clear that the maximum punishment permissible for summary contempt authorized by Super.Ct.Cr. R. 42(a) falls below the one year-$1,000.00 fine or both-limit of D.C. Code 1973, § 11-721(c).
An appeal under D.C. Code 1973, § 11-721(c) requires that an application for an allowance to appeal must be filed in this court "within three days from the date of judgment." See D.C. Code 1973, § 17-307(b) and D.C.App. R. 6(a). No such application was filed and it is well settled that a notice of appeal is not an adequate substitute for an application for the allowance of an appeal. Yeager v. District of Columbia, D.C.Mun.App., 33 A.2d 629 (1943). Accordingly the appeal is
Dismissed.