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Name: People v. Rivera
Case #: A140128
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 06/05/2014
Subsequent History: 7/2/14 mod. opn. & rehrg den.

Trial court must accept late filed notice of appeal because defense attorney’s failure to file a separate appeal from a restitution order amounted to ineffective assistance of counsel. Rivera was convicted of murder and other offenses, and on September 24, 2013 was sentenced to 35 years to life. A timely notice of appeal was filed on October 2. On November 25, the trial court held a restitution hearing and ordered Rivera to pay more than $100,000. No notice of appeal was filed from that hearing until February 11, 2014, when appellate counsel was appointed. The court clerk declined to accept the notice of appeal because it was late. Appellate counsel subsequently filed a motion in the Court of Appeal for leave to file a late notice of appeal from the restitution order. In a declaration, trial counsel explained that he mistakenly believed that his October 2 notice of appeal would apply to all appealable issues in Rivera’s case, including the post-judgment restitution order. Rivera declared he would have filed the notice of appeal himself had he known that trial counsel would not do it for him. Held: Motion treated as habeas petition and granted; the clerk of the lower court was directed to accept for filing the notice of appeal. Although the court generally has no power to grant relief from a late filed notice of appeal, courts have recognized the principle of constructive filing to treat an appeal as timely where a notice of appeal is entrusted to prison officials for filing or where defense counsel has agreed to file a notice of appeal. In this case, the court recognized a third category of situations where the strict jurisdictional time period in criminal appeals will be relaxed: when defense counsel’s unconstitutionally deficient performance deprives a defendant of an appeal he otherwise would have taken. Here, trial counsel’s performance was deficient because he failed to consult with Rivera about filing an appeal (see Pen. Code, § 1240.1) and Rivera’s declaration showed he intended to appeal the restitution order.