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People v. Rios

California Court of Appeals, Fifth District
Jul 2, 2008
No. F055441 (Cal. Ct. App. Jul. 2, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Madera County No. MCR018452, Jennifer Detjen, R.S.

Joe Rios, in pro. per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


OPINION

THE COURT

Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.

On June 21, 2004, appellant was sentenced to three years in prison after being convicted pursuant to a plea of 1 count of possession of methamphetamine for sale. On or around June 2, 2008, appellant filed a notice of appeal from the June 21, 2004, judgment.

On June 11, 2008, this court issued an order directing appellant to address the timeliness of the June 21, 2004, notice of appeal. On June 26, 2008, appellant filed a response to this court’s June 11, 2008, order. Appellant admitted that the notice of appeal was not timely filed but stated that the appeal should not be dismissed on the ground that his appointed counsel did not explain to him what was taking place in the courtroom or inform him of his right to appeal.

DISCUSSION

California Rules of Court, rule 8.104 provides, in pertinent part:

“Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:

“(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was mailed;

“(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or

“(3) 180 days after entry of judgment.

“(b) No extension of time; late notice of appeal

“Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.”

This court does not have jurisdiction to consider an untimely appeal. Appellant’s remedy is to file a petition for writ of habeas corpus seeking to file a belated notice of appeal, or, if appropriate, challenging his conviction. Any petition for writ of habeas corpus challenging appellant’s conviction should be filed in the Madera County Superior Court in the first instance. This court takes no position at this time on whether appellant is entitled to extraordinary relief.

DISPOSITION

The appeal is dismissed.


Summaries of

People v. Rios

California Court of Appeals, Fifth District
Jul 2, 2008
No. F055441 (Cal. Ct. App. Jul. 2, 2008)
Case details for

People v. Rios

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOE RIOS, Defendant and Appellant.

Court:California Court of Appeals, Fifth District

Date published: Jul 2, 2008

Citations

No. F055441 (Cal. Ct. App. Jul. 2, 2008)