Opinion
Court of Appeals No. A-9251.
March 22, 2006.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Richard H. Erlich, Judge. Trial Court No. 2KB-03-136 CR.
Robert D. Lewis, Lewis Thomas, P.C., Nome, for the Appellant.
Paul A. Roetman, Assistant District Attorney, Kotzebue, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In July 2003, Elijah Rock III was convicted, based upon his guilty plea, of vehicle theft in the first degree, a class C felony. Superior Court Judge Richard H. Erlich sentenced Rock to 18 months of imprisonment with 12 months suspended. Judge Erlich placed Rock on probation until July 1, 2006.
AS 11.46.360(a)(1).
While he was on probation, Rock was convicted of criminal trespass in the first degree, a class A misdemeanor. He entered into a plea bargain for a sentence of 210 days with 180 days suspended. He was placed on probation for 2 years. Rock admitted that he was in violation of his vehicle theft probation. Judge Erlich imposed 6 months of the previously suspended time.
AS 11.46.320(a)(2).
Rock has filed an appeal of this sentence, arguing that it is excessive. But a felony defendant has no right to appeal the purported excessiveness of a sentence unless the sentence exceeds 2 years of imprisonment. AS 12.55.120(a); Alaska Appellate Rule 215(a)(1). Even after the revocation of his probation, Rock's total sentence is less than 2 years of imprisonment. He therefore has no right to appeal his sentence.
Even though Rock has no right to appeal his sentence, he does have the right to petition the Alaska Supreme Court to review his sentence. See Alaska Appellate Rules 215(a)(5) 402(a)(1).
Under AS 22.05.015(c), when a case is filed in either the supreme court or the court of appeals, but jurisdiction over the case properly lies in the other appellate court, "[t]he case shall be transferred to the proper court." Accordingly, Rock's sentence appeal is TRANSFERRED to the supreme court. The Appellate Court Clerk's Office is directed to treat Rock's appellate pleadings and brief as a petition for sentence review in the supreme court, and to treat the State's brief as its response to Rock's petition.
The Clerk is further directed to close our file in this matter.