Michael v. State

ROBERT M. BELL, Judge. Kenneth W. Michael, the applicant, pled guilty, on December 27, 1989, in the Circuit Court for Baltimore City, to second degree rape. His plea having been accepted and a verdict of guilty entered pursuant to it, the court sentenced him, on April 26, 1990, to ten years imprisonment, to commence on February 1, 1990. On, or subsequent to, May 9, 1990, but before June 4, 1990 1 , appellant filed a Motion to Modify and Reduce Sentence. 2 In its response to the mo ⁷³⁷ tion, the court, rather than rule on the merits, advised appellant that it had decided to “revise my sentence nunc pro tunc to allow the defendant to appeal if he desires to exercise that right on or before June 15, 1990.” True to its word, the court wrote the Clerk of the Circuit Court, requesting that she “correct the record in the above-captioned case to reflect nunc pro tunc imposition of sentence to have occurred on May 10, 1990, effective May 27, 1990.” 3 Appellant filed this Application For Leave To Appeal from the judgment entered pursuant to his guilty plea on June 8, 1990.

The State filed an answer in which, in addition to urging that it be denied, it asserted that the application was untimely filed and, therefore, must be dismissed. It noted that, because the applicant was sentenced on April 26, 1990, he should have filed his application for leave to appeal within thirty days thereafter, or not later than May 26, 1990. See Maryland Rule 8-204(b)(l), which, in pertinent part, provides: An application for leave to appeal to the Court of Special Appeals shall be filed in duplicate with the clerk of the lower court. The application shall be filed within thirty days after entry of the judgment or order from which the appeal is sought____ It argued that the trial court’s attempt to extend the time for filing the appeal is of no effect, since it had no authority to do so.

The State relies upon Blackstone v. State, 6 Md.App. 404, 407 , 251 A.2d 255 (1969), citing Cornwell v. State, 1 Md.App. 576, 578 , 232 A.2d