Holmquist v. State , 1995 Wyo. LEXIS 170 ( 1995 )

902 P.2d 217 (1995)

Marson HOLMQUIST, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. 94-305.

Supreme Court of Wyoming.

September 13, 1995.

Sylvia Lee Hackl, State Public Defender, and Deborah Cornia, Appellate Counsel, for appellant.

William U. Hill, Attorney General, D. Michael Pauling, Senior Assistant Attorney General, Theodore E. Lauer, Director, Prosecution Assistance Program, and Emilyanne Marrs, Student Intern, for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

LEHMAN, Justice.

Appellant Marson Holmquist appeals from a conviction for first degree sexual assault, claiming that he was denied due process during his sentencing. We conclude that this court lacks jurisdiction to hear this appeal and dismiss.

Appellant did not notify the public defender's office that he wished to prosecute an appeal until five days after the thirty-day time limit had expired. See W.R.A.P. 2.01. The public defender then filed a notice of appeal on the same day appellant made his wish known. The district court denied appellant's Motion to Extend Time for Filing Appeal, finding there was no excusable neglect.

The timely filing of a notice of appeal is jurisdictional. W.R.A.P. 1.03; McElreath v. State ex rel. Worker's Compensation Div., 901 P.2d 1103, 1105-06 (Wyo. 1995); Sanderson v. State, 649 P.2d 677, 679 (Wyo. 1982). A late filing of an appeal results in an incurable jurisdictional defect, leaving this court with no authority to resolve the case. McElreath, 901 P.2d at 1105-06.

We have been generous in a number of criminal cases by considering the merits of the case even though the notice of appeal was not timely filed. We perceived it to be prudent to avoid the later assertion of an issue relating to ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh'g denied 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). In this case it is clear that Holmquist is responsible for the late filing of the notice of appeal, and the dismissal is appropriate.

Appeal dismissed.