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Name: People v. Zarazua
Case #: C062268
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/30/2009
Summary

An appellate court has jurisdiction to determine whether a notice of appeal has been constructively filed and said jurisdiction may be invoked either by motion or by petition for writ of habeas corpus. Five months after being sentenced to state prison, appellant filed a pro se motion in the appellate court for constructive filing of the notice of appeal. Accompanying the motion was appellant’s declaration to the effect that trial counsel had led him to believe the notice would be timely filed, but had then failed to file it. The notice was served on the Attorney General on June 24, 2009, and on July 9, 2009, the court granted appellant’s motion. On July 14, 2009, the Attorney General moved to vacate the July 9, 2009, decision, claiming the request is properly made by habeas corpus and, further, the People had been denied the accepted time period of 15 days from the filing of the motion to respond. The court ruled that under amended rule 31(a) of the California Rules of Court, an appellate court has jurisdiction to determine whether a notice of appeal has been constructively filed in a situation where defendant has reasonably relied on his attorney to file the notice but counsel failed to do so, and that jurisdiction may be invoked by a noticed motion to the court. It agreed that the Attorney General should have been provided the full 15-day period to oppose the request for constructive filing but cautioned the People that in the future, their failure to oppose a motion for constructive filing within the time period may be deemed a consent to the motion.