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Name: People v. Lyons
Case #: B212253
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 11/05/2009

An apppeal was dismissed where the notice of appeal was not timely filed. Lyons appealed from his conviction for possession of methamphetamine. The last day for filing the notice of appeal was October 12, 2008. The notice of appeal was executed on October 28, 2008, and filed by the clerk on November 3, 2008. Appellant requested a certificate of probable cause, and attached to the notice of appeal his unverified motion for late filing which alleged that appellant was incarcerated and had no counsel to assist him file the appeal. The trial court did not rule on the late-filing motion, but expressly granted the request for a certificate of probable cause. In response to the appellate court’s request for briefing on whether the appeal should be dismissed, appellant contended that rule 8.308(d) did not apply because by expressly granting appellant’s request for certificate of probable cause, the trial court impliedly granted his motion to file the late notice of appeal. The appellate court disagreed, finding that the trial court had no authority to do so. The appeal was not timely filed, and the Benoit extension of the constructive-filing doctine did not apply. Appellant did not show any arrangement with trial counsel to file a notice of appeal, nor show that he made efforts of any kind to obtain the notice of appeal form and file it timely. The court therefore dismissed the appeal.