P. v. Rios
Filed 7/2/08 P. v. Rios CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JOE RIOS, Defendant and Appellant. | F055441 (Super. Ct. No. MCR018452) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Jennifer Detjen, R.S.
Joe Rios, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
On June 21, 2004, appellant was sentenced to three years in prison after being convicted pursuant to a plea of 1 count of possession of methamphetamine for sale. On or around June 2, 2008, appellant filed a notice of appeal from the June 21, 2004, judgment.
On June 11, 2008, this court issued an order directing appellant to address the timeliness of the June 21, 2004, notice of appeal. On June 26, 2008, appellant filed a response to this courts June 11, 2008, order. Appellant admitted that the notice of appeal was not timely filed but stated that the appeal should not be dismissed on the ground that his appointed counsel did not explain to him what was taking place in the courtroom or inform him of his right to appeal.
DISCUSSION
California Rules of Court, rule 8.104 provides, in pertinent part:
Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed;
(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or
(3) 180 days after entry of judgment.
(b) No extension of time; late notice of appeal
Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.
This court does not have jurisdiction to consider an untimely appeal. Appellants remedy is to file a petition for writ of habeas corpus seeking to file a belated notice of appeal, or, if appropriate, challenging his conviction. Any petition for writ of habeas corpus challenging appellants conviction should be filed in the Madera County Superior Court in the first instance. This court takes no position at this time on whether appellant is entitled to extraordinary relief.
DISPOSITION
The appeal is dismissed.
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*Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
