Opinion
April 26, 1968. Certiorari Denied November 25, 1968. See 89 S.Ct. 406.
Appeal from the Circuit Court, Jefferson County, Frank Ropke, J.
Matthew B. Quinn, Jr., Louisville, for appellant.
John Breckinridge, Atty. Gen., Frankfort, for appellee.
The question before the court is on a motion to dismiss the appeal for failure to file a transcript of record within 120 days as required by RCr 12.58. The appellant, James Thomas Wadsworth, was convicted in the Jefferson Circuit Court and sentenced to life imprisonment on November 3, 1967. His notice of appeal was filed on November 10. His motion for extension of time to 120 days to file a transcript of the record was sustained on December 15, 1967. The 120th day fell on March 9, 1968, which was on a Saturday. Appellant placed his record in the mail in Louisville, Kentucky, on March 8, 1968. The office of the clerk of the court not being open on Saturday or Sunday, the record was not received and filed until Monday, March 11, which exceeded the 120 days by a period of two days. A motion was timely made to dismiss the appeal.
We are of the opinion the appeal must be dismissed. RCr 12.58 corresponds to and is almost identical with CR 73.08. Even though filing of the record is no longer jurisdictional, Hunt v. Commonwealth, Ky., 408 S.W.2d 182, this court has nevertheless required a timely filing under CR 73.08. Abell v. Meguire, Ky., 402 S.W.2d 91; Powell v. Blevins, Ky., 365 S.W.2d 104. As the two rules are practically identical, we can perceive of no reason why their enforcement should not be uniformly required. Appellant insists that the appeal herein involves a constitutional question which if sustained would render the judgment void and that, therefore, the appeal should be accepted. He cites in support of this contention LaVigne v. Commonwealth, Ky., 398 S.W.2d 691. We have examined the record and find that the question raised involves an alleged illegal search and seizure. We have previously held this does not render the judgment void. Dupin v. Commonwealth, Ky., 404 S.W.2d 280; Wahl v. Commonwealth, Ky., 396 S.W.2d 774; Gregory v. Commonwealth, Ky., 394 S.W.2d 944 and Moore v. Commonwealth, Ky., 394 S.W.2d 931.
When a party chooses the United States mail for the delivery of a record, he selects this means as his agency and if the agency makes delivery late, he will have to bear the consequences. We recognize that some practitioners before this court have not in the past been advised that the clerk's office is closed on Saturday and this has, on occasion, worked a hardship. However, relief of this hardship will require a change of the rules of this court and cannot be accomplished by making exceptions in isolated cases.
For the foregoing reasons the motion is sustained and the appeal dismissed.
PALMORE, J., does not concur.