Joseph Daniel Lavender, Jr. v. State ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Joseph Daniel Lavender, Jr.

Appellant

Vs.                   No. 11-01-00388-CR B Appeal from Comanche County

State of Texas

Appellee

The jury convicted appellant of robbery, found the enhancement allegations to be true, and assessed his punishment at confinement for 40 years.  The sentence was imposed in open court on August 1, 2001.  A motion for new trial was timely filed; therefore, the notice of appeal was due to be filed within 90 days from the date of sentencing.  TEX.R.APP.P. 26.2(a).  Appellant filed a motion to extend time to perfect an appeal on November 9, 2001. He filed his notice of appeal on November 15, 2001.

The State has filed in this court a motion to dismiss the appeal.  Calculating from the date the sentence was imposed, the State contends that this court does not have jurisdiction because appellant filed his notice of appeal one day late.  In his response, appellant calculates from the date the judgment was signed and contends that he filed his notice of appeal on the last day.

Rule 26.2(a)(2) provides that the due date is calculated from the date the sentence is imposed in open court.  Therefore, August 1, 2001, is the proper beginning date to figure appellate deadlines. The notice of appeal was originally due to be filed on Tuesday, October 30, 2001, 90 days after the date of sentencing.  In order to extend the time for perfecting an appeal, both the motion and the notice of appeal had to have been filed by Wednesday, November 14, 2001, 15 days after the original due date. TEX.R.APP.P. 26.3.  The record reflects that, while the motion was timely, the notice of appeal was not.  Therefore, the State is correct in asserting that an appeal has not been timely perfected and that this court lacks jurisdiction to entertain the appeal. Slaton v. State, 981 S.W.2d 208 (Tex.Cr.App.1998); Olivo v. State, 918 S.W.2d 519 (Tex.Cr.App.1996); Rodarte v. State, 860 S.W.2d 108 (Tex.Cr.App.1993); Shute v. State, 744 S.W.2d 96 (Tex.Cr.App.1988).

The State=s motion is granted, and the appeal is dismissed for want of jurisdiction.

PER CURIAM

May 23, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.