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Blakeman v. State5/6/1988
heretofore determined by the Supreme Court. In addition, this case involves an important state question that has not been determined by the Supreme Court and the issue is of great public importance.
"In Wright v. State, 707 P.2d 153 (Wyo. 1985), the Court granted a writ of certiorari after an appeal in the case had been heard. The Court granted the writ in Wright to prevent a failure of justice. "In the present case, justice requires the Court to grant a writ of certiorari and Petitioner requests the Court to accept the brief and paperwork on appeal as the basis for the writ of certiorari."
No response to the petition for writ of certiorari as permitted by Rule 13.02(f), W.R.A.P. was made by the office of the Attorney General within the ten day period provided, and consequently this court now rejects the constitutional issue petition presented without filed objection from the State as respondent. I dissent from denial of consideration of the petition for certiorari, since petition rejection results in present disregard of Evitts v. Lucey, supra, and Bearden v. Georgia, supra, the Fifth and Fourteenth Amendments to the United States Constitution, and Art. 1, § 3; Art. 1, § 5; and Art. 1, § 6 of the Wyoming Constitution.
It is this Evitts v. Lucey problem that more directly causes my present concern. In effect in this case, on first occasion since I have been on this court, the majority will deny due process to the convicted defendant in lost appeal because of the attorney's failure to promptly and properly file the notice of appeal. Denial of defendant's constitutional rights is, I would find, not only initially improper but also now sufficient to provide cause for relief through the Rule 13.01 writ of certiorari. See Wright v. State, Wyo., 707 P.2d 153 (1985). This specific subject has been directly addressed by this court in unanimous decision within the past two months. Foote v. State, Wyo., 751 P.2d 884 (1988).
IV. CONCLUSION
I would grant the writ of certiorari in lieu of the belated notice of appeal or reverse the dismissal of the appeal on the basis of the Evitts v. Lucey defect and direct the attorney general's office to file appellee's brief so that the case can be considered on the record presented. Unless something new can be added in fact or legal reasoning, the contempt penalty consisting of a six month jail sentence should be reversed.
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