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Commonwealth v. Ellis10/8/2004
appeal, which we hold is determinative in this case.
Nine days after the entry of the final judgment, the Commonwealth filed a motion to reconsider, presumably pursuant to CR 59.05. A timely motion under this rule operates to stay the running of time for an appeal. Therefore, the Commonwealth's time for filing a notice of appeal was stayed pending the entry of a ruling by the circuit court on its motion to reconsider. Because the circuit court had not had an opportunity to even hear the motion, let alone correct the final judgment, prior to the filing of the notice of appeal, we hold that the appeal was prematurely taken and must be dismissed to allow for a ruling on the pending motion to reconsider. As an aside, we note that KRS 189A.010(5)(c) is clear that Ellis should have been sentenced to a mandatory minimum sentence of sixty days as he entered a guilty plea to DUI Third Offense with aggravating circumstances. Should the motion to reconsider be denied and the Agreed Order not be enforced, the Commonwealth would not be precluded from perfecting a future appeal on the same issue.
For the foregoing reasons, we hold that the Commonwealth has not shown sufficient cause why its appeal should not be dismissed as prematurely taken. Therefore, the above-styled appeal is ORDERED DISMISSED this date.
ALL CONCUR.
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