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State v. Ciccone

November 24, 2010


Appeal from the District Court of the Fourth Judicial District of the State of Idaho, Elmore County. Hon. Michael E. Wetherell, District Judge.

The opinion of the court was delivered by: Horton, Justice

2010 Opinion No. 118

The appeal is dismissed.

This is an appeal by Albert Ciccone from his convictions for first and second degree murder. We dismiss this appeal because his notice of appeal was untimely.


Ciccone was charged with two counts of first-degree murder for striking his pregnant wife, Kathleen Ciccone, with his car, thereby killing both her and her unborn child. On January 26, 2005, a jury found Ciccone guilty of first-degree murder for killing his wife and guilty of second-degree murder for killing her fetus.

The district court pronounced sentence on June 7, 2005. On that same date, the district court entered a judgment imposing a determinate life sentence for the first-degree murder and a concurrent determinate fifteen year sentence for the second-degree murder. The judge's signature was dated June 7, 2005. However, the filing stamp that was subsequently affixed to the judgment by the clerk of the court bears a handwritten notation of May 7, 2005. The district court apparently became aware of the discrepancy and entered an amended judgment on June 21, 2005. The only changes from the earlier judgment were the dates of the judge's signature and the filing stamp. On August 2, 2005, exactly 42 days after entry of the amended judgment, Ciccone filed his notice of appeal. The Idaho Court of Appeals dismissed the appeal for lack of jurisdiction. This Court granted Ciccone's petition for review.


When this Court grants a petition for review of a decision of the Court of Appeals, it ―gives serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court.‖ State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 (2007). ―Jurisdictional issues . . . and the interpretation of statutory language . . . are questions of law over which this Court exercises free review.‖ Christian v. Mason, 148 Idaho 149, ___, 219 P.3d 473, 475 (2009).


This Court lacks jurisdiction to entertain this appeal because the judgment was entered on June 7, 2005, and Ciccone's August 2, 2005 notice of appeal was not timely.

The timely filing of a ―notice of appeal is a jurisdictional prerequisite to challenge a decision made by a lower court.‖ I.A.R. 21; Twin Falls Cnty. v. Coates, 139 Idaho 442, 444, 80 P.3d 1043, 1045 (2003). While an appeal as of right may be taken from a district court's judgment of conviction in a criminal matter, I.A.R. 11(c), failure to timely file such notice ―shall cause automatic dismissal of such appeal or petition, upon the motion of any party, or upon the initiative of the Supreme Court.‖ I.A.R. 21. Under Idaho Appellate Rule 14(a), entry of a judgment opens a 42-day window within which a party's notice of an appeal as of right must be filed; that is, unless a notice of appeal is filed ―within 42 days from the date evidenced by the filing stamp of the clerk of the court,‖ the appellate courts of this state are without jurisdiction to decide the appeal. I.A.R. 14(a); I.A.R. 21. Thus, whether this Court has jurisdiction to hear Ciccone's appeal hinges on the degree of accuracy required of the filing stamp.

Ciccone argues that the clerical error on the filing stamp, which wrongly indicated the date of filing as May 7, 2005, requires the conclusion that the June 7, 2005 judgment ―never became a valid, final, appealable order.‖ Rather, he argues that because the filing stamp on the June 21, 2005 amended judgment correctly reflected its filing date, it was the first judgment effectively entered, thereby first opening the 42-day window. Thus, he asserts that because he filed his notice of appeal on the 42nd day following the June 21, 2005 entry of judgment, we have jurisdiction to consider this appeal.

Ciccone urges this Court to accept too narrow a reading of our rules of trial and appellate procedure. Idaho Criminal Rule 49(c) provides that ―[d]ocuments shall be filed in the manner provided in civil actions.‖ Thus, we look to the rules of civil procedure to decide this case. Before a final judgment may take effect, its entry-a procedural mechanism that protects the public's interests in accessibility, administrative efficiency, and consistency-is required. ―[T]he placing of the clerk's filing stamp on the judgment constitutes the entry of the judgment; and the judgment is not effective before such entry.‖ I.R.C.P. 58(a). Thus, in order to be effective, a judgment must be file stamped by the clerk of court. Id. The stamp contains administrative information including the date, hour, and ...

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