Criminal: HAYS V. COM. (COA; 3/31/2006)

CRIMINAL — Postconviction Relief; Motions to Reconsider; Tolling of Appeal Deadline
DATE:  3/31/2006
After completing his sentence of probation for a felony drug conviction, Hays filed a CR 60.02 motion seeking to have his conviction vacated.  The court held an evidentiary hearing and later entered an order denying this motion.  Hays then moved the court to amend its prior order denying his 60.02 motion.  This Maneuver had the effect of tolling his time for an appeal from the denial of his motion.  However, the court ultimately denied the motion to amend its prior order.  The clock for his appeal began ticking once again.  Rather than filing  an appeal, however, Hays filed a motion to reconsider the denial of his motion asking the court to amend its earlier order denying his 60.02 motion.  The court summarily denied the motion to reconsider.  Hays then filed an appeal from the denial of his 60.02 motion.  However, the trial court and CA held that it was untimely.  Both courts rejected his argument that the filing of his motion to reconsider had essentially tolled the appeal deadline yet again.  They reasoned that, under these circumstances, the Civil Rules do not allow for a second tolling of the appeal deadline.  See Cloverleaf Dairy v. Michels, 636 S.W.2d 894, 896 (Ky. 1982).      

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