People v. Boivin , 632 P.2d 1038 ( 1981 )

ENOCH, Chief Judge,

dissenting.

I respectfully dissent.

In part two of its opinion, the majority concludes that a meritorious ground for appellate review need not be shown before an appeal may be filed out of time. The majority rationalizes that this requirement, as announced in Haines v. People, 169 Colo. 136, 454 P.2d 595 (1969), would, in light of

the United States Supreme Court’s opinion in Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), and its progeny, no longer be followed by the Colorado Supreme Court. While the Supreme Court might well reconsider Haines in light of subsequent authority, such conclusion is not foregone.

The Rodriquez standard was not imposed as a requirement upon the states, and although there may be a trend toward abandonment of the requirement that a meritorious ground be shown, the jurisdictions are not unanimous. See, e. g., Jones v. State, 3 Kan.App.2d 578, 598 P.2d 565 (1979). Furthermore, I find nothing offensive in the requirement that for defendant in this case to be allowed to file a notice of appeal over three and one-half years late, he must at least show some meritorious ground for appellate review.

Whether Haines remains viable authority is a question better left for the Supreme Court, and, since defendant has failed to show a meritorious ground for review, I would deny the motion to file a notice of appeal out of time.