In re Culver
Filed 1/17/08 In re Culver CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re KELLY MORGAN CULVER on Habeas Corpus. | G039783 (Super. Ct. No. 07HF0301) O P I N I O N |
Original proceedings; petition for a writ of habeas corpus to permit the filing of a late notice of appeal to challenge a judgment of the Superior Court of Orange County, Daniel T. McNerney, Judge. Petition granted.
Appellate Defenders, Inc., and Lynelle K. Lee for Petitioner.
Edmund G. Brown, Jr., Attorney General, and Gary W. Schons, Senior Assistant Attorney General, for Respondent.
* * *
THE COURT:*
Following a court trial, petitioner Kelly Morgan Culver was convicted of one count of the sale or transportation of marijuana. He asked trial counsel to file a notice of appeal on his behalf which counsel agreed to do. Unfortunately, the notice of appeal was filed on November 28, 2007, one day late due to an admitted oversight by trial counsel. A petition for relief for failure to file a timely notice of appeal has been filed. (In re Benoit (1973) 10 Cal.3d 72.)
The Attorney General was served with a copy of the petition. He advises us that he does not oppose the relief requested.
The principle of constructive filing of the notice of appeal in criminal cases should be applied in situations where, as here, the defendant makes a timely request of trial counsel to file a notice of appeal, counsel advises defendant that a notice of appeal will be filed, but due solely to the inadvertence of counsel the notice of appeal is filed one day late. (See In re Benoit, supra, 10 Cal.3d at pp. 87-88.)
Good cause appearing, and the Attorney General having effectively waived the necessity of filing an order to show cause, the petition is granted. On petitioners behalf, attorney Lynelle K. Hee is directed to prepare and file a notice of appeal in Orange County Superior Court case number 07HF0301, and the clerk of the superior court is directed to accept the filing if it is presented within 20 days of this opinion becoming final. In the interests of justice, this opinion is deemed final forthwith.
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* Before Sills, P. J., Rylaarsdam, J., and Ikola, J.
