Opinion
No. 7719 No. 7720
Decided August 1, 1977
Appeal and Error — Filing Appeal — Late Filing Defendants' motion for late appeal was properly denied by superior court, where defendants failed to present affidavits establishing filing of timely appeals, authenticating their claims of clerical error in the district court clerk's office, or payment of appeal fees, thus failing to meet their burden of showing good cause under RSA 599:1.
David H. Souter, attorney general, and Richard B. Michaud, attorney (Mr. Michaud orally), for the state.
Holland Aivalikles (Mr. William E. Aivalikles orally), for the defendants.
MEMORANDUM OPINION
The issue before this court is whether defendants' motion for late appeal was properly denied by the Superior Court (Goode, J.). On May 3, 1976, Roland Charpentier was convicted by the Nashua District Court for leaving the scene of an accident. On April 27, 1976, Gregory L. Morse was convicted for possession of marijuana. Appearance cards were filed for defendant Charpentier in the Hillsborough County Superior Court on May 3, 1976, and for defendant Morse on April 28, 1976. The superior court entered both appearances on May 6, 1976. The district court complaints were never transferred to the superior court for appeal. On August 16, 1976, defense counsel filed motions for late appeal with the superior court. The motions were denied and all questions of law were reserved and transferred.
Under RSA 599:1, the time for an appeal to be entered may be extended by the superior court if good cause is shown. RSA 491: App. R. 54 (Supp. 1975) states that motions grounded upon facts must be ". . . verified upon affidavit, or . . . apparent from the record or from the papers on file in the case. . . ." Defendants presented no affidavits establishing the filing of timely appeals, authenticating their claims of clerical error in the district court clerk's office, or the payment of appeal fees. Therefore, defendants' motion for late entry was correctly denied because they failed to meet their statutory burden of showing good cause under RSA 599:1.
GRIMES, J., did not sit.