Rule PC 2. Belated Notice of Appeal—Belated Motion to Correct Error—Belated Appeal
Effective January 1, 2012
Eligible defendant defined. An “eligible defendant” for purposes of this Rule is a defendant who, but for the defendant's failure to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.
Appellate court jurisdiction. Jurisdiction of an appeal under this Rule is determined pursuant to Rules 4 and 5 of the Indiana Rules of Appellate Procedure by reference to the sentence imposed as a result of the challenged conviction or sentence.
Section 1. Belated Notice of Appeal
(a) Required Showings.
An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if;
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and
(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.
(b) Form of petition.
There is no prescribed form of petition for permission to file a belated notice of appeal. The petitioner's proposed notice of appeal may be filed as an Exhibit to the petition.
(c) Factors in granting or denying permission.
If the trial court finds that the requirements of Section 1(a) are met, it shall permit the defendant to file the belated notice of appeal. Otherwise, it shall deny permission.
(d) Hearing.
If a hearing is held on a petition for permission to file a belated notice of appeal, it shall be conducted according to Ind. Post-Conviction Rule 1(5).
(e) Appealability.
An order granting or denying permission to file a belated notice of appeal is a Final Judgment for purposes of Ind. Appellate Rule 5.
(f) Time and procedure for initiating appeal.
If the court grants permission to file a belated notice of appeal, the time and procedure for filing such notice of appeal is governed by App. R. 9(A).
Section 2. Belated Motion to Correct Error.
(a) Required Showings.
An eligible defendant convicted after a trial or plea of guilty may petition the court of conviction for permission to file a belated motion to correct error addressing the conviction or sentence, if:
(1) no timely and adequate motion to correct error was filed for the defendant;
(2) the failure to file a timely motion to correct error was not due to the fault of the defendant; and
(3) the defendant has been diligent in requesting permission to file a belated motion to correct error under this rule.
(b) Merits of motion.
The trial court shall not consider the merits of the motion until it has determined whether the requirements of Section 2(a) are met.
(c) Hearing.
Any hearing on whether the petition should be granted shall be conducted according to P-C. R. 1(5).
(d) Factors in granting or denying permission.
If the trial court finds that the requirements of section 2(a) are met, it shall permit the defendant to file the motion, and the motion shall then be treated for all purposes as a motion to correct error filed within the prescribed period.
(e) Appealability of Denial of Permission.
If the trial court finds that the requirements of Section 2(a) are not met, it shall deny defendant permission to file the motion. Denial of permission shall be a Final Judgment for purposes of App. R. 5.
(f) Time for initiating appeal.
The time for filing a notice of appeal from denial of permission is governed by App. R. 9(A).
Section 3. Belated Perfection of Appeal.
An eligible defendant convicted after a trial or plea of guilty may petition the appellate tribunal for permission to pursue a belated appeal of the conviction or sentence if:
(a) the defendant filed a timely notice of appeal;
(b) no appeal was perfected for the defendant or the appeal was dismissed for failing to take a necessary step to pursue the appeal;
(c) the failure to perfect the appeal or take the necessary step was not due to the fault of the defendant; and
(d) the defendant has been diligent in requesting permission to pursue a belated appeal.