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State of New Jersey v. Emmitt Worthy

June 8, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EMMITT WORTHY, III, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-042.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 25, 2011

Before Judges Fisher and Simonelli.

Defendant Emmitt Worthy appeals from the November 2, 2009 order dismissing his appeal of a municipal court conviction to the Law Division with prejudice. We affirm.

On September 9, 2006, defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to chemical test, N.J.S.A. 39:4-50.4a; failure to maintain a lane, N.J.S.A. 39:4-88; driving with an expired license, N.J.S.A. 39:3-10; operating a motor vehicle with a controlled dangerous substance (CDS) in his possession or in the motor vehicle, N.J.S.A. 39:4-49.1; and possession of CDS, N.J.S.A. 2C:35-10a(1). He was convicted of all charges in the Dover Township Municipal Court, except to refusal under N.J.S.A. 39:4-50.4a. Defendant filed an appeal with the Law Division. Following a de novo review, Judge Ahto remanded the matter for a new trial.

Following a re-trial in the municipal court, on September 30, 2008, defendant was again convicted of all charges, except the refusal charge. The municipal court judge imposed the appropriate fines, assessments and fees and suspended defendant's driver's license for two years and ninety days. The matter was stayed pending appeal.

On October 8, 2008, defendant filed a pro se appeal with the Law Division. On April 14, 2009, the court sent defendant a scheduling order requiring him to appear for a hearing on June 5, 2009, and file a brief twenty-one days prior thereto. The notice warned defendant that "FAILURE TO SUBMIT BRIEFS IN A TIMELY MANNER WILL RESULT IN DISMISSAL . . . ." Defendant did not file a brief prior to the hearing despite obtaining an extension of the deadline to May 22, 2009. As a result, on June 1, 2009, the court dismissed his appeal without prejudice.

Still representing himself, defendant obtained permission to re-file his appeal, which he did on June 18, 2009. The court sent him another scheduling order on June 22, 2009, requiring him to appear for a hearing on August 7, 2009, and file a brief twenty-one days prior thereto. Again, the notice warned defendant that "FAILURE TO SUBMIT BRIEFS IN A TIMELY MANNER WILL RESULT IN DISMISSAL . . . ."

Defendant did not file a brief. Instead, he retained an attorney on July 22, 2009. The court subsequently granted several adjournments, and eventually re-scheduled the hearing for October 23, 2009. By that time, this appeal had been pending for over a year from the time defendant first filed his appeal.

Defendant and his attorney appeared on October 23, 2009. Counsel advised the court he had not filed a brief because he and defendant "cannot see eye to eye on a number of issues" and defendant no longer wanted counsel to represent him. Counsel also advised the court he had returned all documents to defendant about two weeks prior, and reimbursed the entire fee defendant had paid. Defendant advised the court he had consulted another attorney and was meeting with her the next day.

The judge relieved counsel and re-scheduled the matter for October 30, 2009. The judge ordered defendant to have the new attorney contact the court and fax a letter of representation by October 26, 2009, and to appear on October 30, 2009, with or without an attorney.

No attorney contacted the court, prompting the judge's law clerk to contact the attorney defendant said he had consulted. That attorney advised the court she had no intention of representing defendant, would not represent him in this case, and so advised defendant.

Defendant did not appear on October 30, 2009, nor did he contact the court thereafter or request an adjournment. As a result, the judge dismissed the appeal with prejudice for failure to prosecute and file a brief. The judge entered an order on November 2, 2009, confirming the dismissal ...


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