June 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROLANDO FIGUEROA AND ORLANDO FIGUEROA, DEFENDANTS-APPELLANTS.
On appeal from the State of New Jersey, Law Division, Hudson County, Complaint Nos. W-2005-001298 and W-2005-001299.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2008
Before Judges Lintner and Alvarez.
This is an appeal from a Law Division order which denied defendants, Rolando Figueroa and Orlando Figueroa, the right to file appeals nunc pro tunc of municipal court convictions for disorderly persons theft. We affirm.
Defendants were found guilty on March 29, 2007, in the North Bergen Municipal Court. Counsel then attempted to file an appeal by sending a notice of appeal to the North Bergen Municipal Court on April 13, 2007, along with a check for $500 as a transcript deposit.
On May 20, 2007, defendants informed counsel that their driver's licenses had been suspended due to non-payment of fines levied as a result of the theft convictions. When counsel looked into the matter, he learned that the notice of appeal sent to the municipal court had been misplaced, and that the appeal was therefore out of time. Counsel wrote several letters to the municipal court judge regarding reinstatement of the appeal, but received no reply.
Copies of the letters about the misplaced notice were sent to the Hudson County Criminal Division Manager's office; the staff notified counsel that no notice of appeal as required by the rule had been received in their office. Once notified of the omission, counsel forwarded a notice and a filing fee of $75, but not the $150 required for two appeals.
As the Law Division judge noted in his written opinion dated July 10, 2007, although counsel's moving papers included a copy of a certified mail return receipt from the municipal court, no receipt was supplied from the requisite mailing to the Criminal Division Manager's office. No copy of a cancelled check for the filing fee of $150 was supplied either. Accordingly, the Law Division judge denied defendant's request to file the appeal nunc pro tunc, and denied defendant's subsequent request for reconsideration as he found defendants had not complied with the applicable rules.
As the State correctly points out, Rule 3:23-2 states that persons appealing from convictions in municipal court "shall" file a notice of appeal with the municipal court, as well as a copy of the notice with the Criminal Division Manager's office. The Rule also requires payment of the appropriate filing fee and an affidavit of timely filing of the notice on the municipal court, and on the municipal prosecutor. Rule 3:23-2 specifically states that failure to comply "shall" result in dismissal of the appeal.
As also noted in the State's brief, Rule 1:3-4(c) states: "[n]either the parties nor the court may . . . enlarge the time specified by . . . R. 3:23-2 (appeals to the Law Division from judgments of conviction in courts of limited criminal jurisdiction)." The only exception to the rule's proscription is where a defendant seeks to vacate a guilty plea out of time if not advised of the right to appeal when the plea was entered.
See State v. Martin, 335 N.J. Super. 447, 451-52 (App. Div. 2000).
The exception does not apply to this situation. No explanation is given for the failure to pay the proper filing fee or file the appropriate documents with the Criminal Division Manager's office. Therefore, there is no basis to exempt defendants from the dismissal of the appeals as required by the rules.
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