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Guillory v. State

November 2, 2007

JOSEPH LEO GUILLORY, APPELLANT,
v.
STATE OF KANSAS, APPELLEE.



Appeal from Washington district court, THOMAS M. TUGGLE, judge.

SYLLABUS BY THE COURT

1. A pro se defendant who files a K.S.A. 60-1507 motion which is summarily denied has no right to be advised by the court as to the right to appeal therefrom.

2. The filing of a timely notice of appeal is jurisdictional.

3. Where a defendant files an untimely appeal from the summary denial of a K.S.A. 60-1507 motion, the exceptions set forth in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), are inapplicable, and the appeal must be dismissed, all as is more fully set forth in the opinion.

The opinion of the court was delivered by: McFARLAND, C.J.

Appeal dismissed.

On April 30, 2002, Joseph L. Guillory pled nolo contendere to the first-degree premeditated murder (K.S.A. 21-3401[a]) of Alva Truman Shaw. On July 1, 2002, he was sentenced to life imprisonment.

On October 31, 2005, Guillory filed a pro se K.S.A. 60-1507 petition in which he alleged (1) he was never informed he could appeal his sentence; (2) ineffective assistance of counsel; and (3) his attorney coerced him into entering a guilty plea. In a written decision, the district court summarily denied the petition. The district court cited from the sentencing transcript and concluded that Guillory had properly been advised of his right to appeal. The record supports this conclusion.

The court's written decision denying relief was filed on November 22, 2005. The certificate of mailing shows that a copy of the decision was sent to Guillory at the El Dorado Correctional Facility. On March 27, 2006, Guillory filed a pro se notice of appeal from the summary denial of his K.S.A. 60-1507 motion. The appellate defender was appointed and the appeal was docketed.

The Court of Appeals issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction due to the failure to file the notice of appeal from the denial of Guillory's 60-1507 motion within the 30-day limitation of K.S.A. 60-2103(a). Guillory responded, asserting that his untimely appeal should be permitted as an exception under State v. Ortiz, as the district court did not inform him of his right to appeal the decision denying his K.S.A. 60-1507 petition.

The Court of Appeals held none of the Ortiz exceptions applied and dismissed the appeal. We granted Guillory's petition for review.

FOCUSING ON THE ISSUES

Kansas appellate courts have only such appellate jurisdiction as is provided by law. The filing of a timely notice of appeal is jurisdictional. Failure to file a timely notice of appeal requires dismissal of the untimely appeal. Exceptions to the requirement of dismissal of direct appeals have been recognized in the interest of fundamental fairness only in those cases where a criminal defendant either was not informed of the rights to appeal or was not furnished an attorney to perfect an appeal or was furnished an attorney for that purpose who failed to perfect and complete an appeal. State v. Phinney, 280 Kan. 394, Syl. ¶ 3, 122 P.3d 356 (2005). These three exceptions were first set forth in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and are frequently referred to as the Ortiz exceptions. Interestingly, Ortiz himself was not permitted to file his direct appeal out of time from his sentence as he did not qualify for any of the exceptions. 230 Kan. at 736-37.

Guillory's 60-1507 motion filed herein sought leave to file a direct appeal of his sentence on the grounds: (1) he was never informed of his right to appeal his sentence; (2) he received ineffective assistance of counsel; (3) his attorney coerced him into entering a guilty plea. He contended he came ...


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