Glover v. State of Indiana

NOT FOR PUBLICATION

 
ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

KENNETH T. ROBERTS    JEFFREY A. MODISETT
Roberts & Bishop    Attorney General of Indiana
Indianapolis, Indiana
             GEOFF DAVIS
            Deputy Attorney General
            Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

DIANE GLOVER, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-9611-CR-456 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT    
The Honorable William E. Young, Special Judge
Cause No. 49G03-9412-CF-181619

August 20, 1997

MEMORANDUM DECISION - NOT FOR PUBLICATION*

RILEY, Judge
 
*Pursuant to Appellate Rule 15, this memorandum decision shall not be regarded as precedent nor cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel or the law of the case.

STATEMENT OF THE CASE
    Defendant-Appellant Diane Glover ("Glover") appeals from the revocation of her probation following her conviction of battery, as a Class C felony.See footnote 1
    We dismiss for lack of jurisdiction.
ISSUES
    Glover presents several issues for review; however, the sole issue raised by the State is dispositive: Whether Glover's praecipe for appeal was timely filed.
FACTS AND PROCEDURAL HISTORY
    On December 27, 1994, Glover was charged by information with one count of aggravated battery, as a Class B felony. On July 6, 1995, the State filed an amended information charging Glover with an additional count of battery as a Class C felony. Thereafter, Glover entered into a written plea agreement wherein she pled guilty to battery as a Class C felony, and the State dismissed the Class B felony aggravated battery charge. Glover was sentenced to an eight year sentence, with six years suspended. She was placed on probation for a three year term. On June 13, 1996, Glover's probation was revoked due to a violation. She was ordered committed on the court's previously imposed sentence. Glover now appeals.
DISCUSSION AND DECISION
    The State contends that Glover's appeal is untimely. Glover's probation was revoked on June 13, 1996, and the praecipe for appeal was not filed until August 15, 1996.

    Ind.Appellate Rule 2(A) requires that every party seeking an appeal must file a praecipe within thirty days of the entry of final judgment. Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 398 (Ind. Ct. App. 1997), reh'g denied. The timely filing of a praecipe is a jurisdictional prerequisite, and failure to conform with the applicable time limits results in forfeiture of the appeal. See Claywell v. Review Bd. of the Indiana Dept. of Employment and Training Serv., 643 N.E.2d 330 (Ind. 1994).
    Although its appears from the Chronological Case Summary and a notation on the face of the praecipe that the trial court permitted the late filing, this was error. Effective January 1, 1994, the supreme court amended Ind.Post-Conviction Rule 2, permitting a court to grant an appellant leave to file a belated praecipe only if the appellant is seeking a direct appeal of the conviction. See Howard v. State, 653 N.E.2d 1389 (Ind. 1995). The praecipe in the instant case was not timely filed and the appeal must be dismissed.
    We note that our review of the Chronological Case Summary indicates that following the court's revocation of Glover's probation, Glover was advised of her right to appeal, declared indigent and the matter was referred to the Marion County Pauper Appeals Panel. Glover's appointed counsel entered his appearance contemporaneous with the filing of the praecipe on August 15, 1996. We raise this point because we recognize the possibility of undue hardship upon Glover depending on the date her case was actually assigned to pauper counsel. However, because our supreme court has declared the timely filing of a praecipe as a jurisdictional prerequisite to this court's jurisdiction, we must dismiss.
    Dismissed.
DARDEN, J., and CHEZEM, J., concur.

Footnote:     1   Ind. Code 35-42-2-1.