¶1Memorandum Opinion
¶2On November 30, 1978, the Hampton District Court found the defendant guilty of criminal trespass (RSA 635:2). He appealed to the Rockingham County Superior Court but did not pay the $8 filing fee. His case, therefore, was remanded to the district court for execution of the sentence, and he was notified of the remand on January 15, 1979. On January 30, 1979, he notified the superior court that he considered the fee to be unconstitutional and refused to pay it. The defendant was ordered to report for imposition of sentence on April 25, 1979. He filed a motion in superior court to reinstate his appeal, which was denied by Bean, J. The defendant did not take exception to the denial.
¶3On March 7, 1979, we decided, in State v. Cushing, 119 N.H. 147, 399 A.2d 297 (1979), that the filing fee requirement was unconstitutional. The defendant contended that this ruling should be made retroactive to apply to his case and moved in superior court to reinstate his appeal. The motion was denied by Temple, J., and defendant appealed to this court.
¶4We expressly limited the holding in Cushingto “pending appeals where the fee has not yet been paid.” Id. at 148, 399 A.2d at 298. The defendant’s appeal was not pending on the date of the Cushingdecision. He had been notified of the remand and, although he stated his claim of unconstitutionality, he took no appeal from the remand. His case is therefore unlike State v. Givner, 119 N.H. 778, 407 A.2d 824 (1979), where the defendant’s appeal was held to be pending because she was not notified of the remand until after the date of the Cushingdecision and had no prior opportunity to appeal.
¶5We hold that the decision in State v. Cushing does not apply to defendant’s case.
¶6Appeal dismissed.