King v. State

¶1dissenting from dismissal of appeal.

¶2By majority vote the Second District panel has this date dismissed the appeal of Desmond King upon grounds that the prac-cipe was not timely filed pursuant to Appellate Rule 2(A). I dissent.

¶3Notwithstanding some authority seemingly to the contrary,1 failure to file a praecipe within thirty days following final judgment does not require dismissal of the appeal. Were it so, there could be no such thing as a Belated Praecipe. Post Conviction Rule 2 clearly provides that following a criminal conviction a defendant may appeal notwithstanding failure to file a timely praecipe. The passage of thirty days from the date of judgment, therefore, does not automatically terminate the right of appeal. The timely filing of a praecipe is therefore not truly jurisdictional.

¶4In Jordan v. State (1987) Ind., 512 N.E.2d 407, our Supreme Court by 8-2 vote held that Indiana Post-Conviction Rule 1 "cannot be applied to one adjudicated a delinquent." 512 N.E.2d at 410. The majority discussion concerned only Post-Conviction Rule 1, not Post-Conviction Rule 2, § 1 which deals with belated praccipes. The dissenting justices, however, opined that a juvenile "must as a matter of due process have some procedure available through which to challenge an adjudication after appeal time has expired...." 512 N.E.2d at 411. Chief Justice Shepard, who voted with the majority, issued an opinion upon rehearing (Jordan v. State (1987) Ind., 516 N.E.2d 1054) concluding that some method of challenge must be made available, suggesting Trial Rule 60 rather than the post-conviction relief rules. It would appear that Chief Justice Shepard's views are tied to the proposition that juvenile proceedings are civil in nature and that therefore the post-conviction rules are not appropriately applied. Be that as it may, juvenile proceedings, like post-conviction relief proceedings, are deemed civil in nature. Thus, no valid basis exists for stating that the filing of a praecipe within thirty days from an adjudication of delinquency is absolutely jurisdictional.

¶5Furthermore, as held in Byrd v. State (1992) Ind., 592 N.E.2d 690, the State has waived the untimely filing of the praecipe because no timely objection was made. Such waiver is particularly appropriate when, as here, the record of proceedings and the appellant's brief have both been filed. The State's first objection to the praecipe filing was set forth in its Motion to Dismiss which was not filed until the very day its Appellee's brief was due.

¶6In its dismissal, the majority here undoubtedly focuses upon the language of App.R. 2(A) and Criminal Rule 19 which declare that unless the thirty day filing requirement is fulfilled, "the right to appeal will be forfeited". In my view, the rules contemplate that some entity or authority must declare the forfeiture. Such declaration of forfeiture would seem therefore to be within the sound discretion of this court. Forfeiture, if any, does not, or should not, occur by operation of law. The provision for forfeiture is not self-executing.

¶7This court should not dismiss requiring King to embark upon a procedurally wasteful course by now filing in the trial court a Motion for Leave to File a Belated Prae-cipe, await a ruling by the court and then file his Belated Praecipe for a record which is already before us.

¶8I would grant the State thirty days to file it appellee's brief and would then proceed to a consideration of the appeal upon its merits.