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State v.Robert West
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2000 ME 133
Docket: Aro-00-39
Submitted
on Briefs: June 27, 2000
Decided: July 12, 2000
Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.
STATE OF MAINE
v.
ROBERT WEST
ALEXANDER, J.
[¶1] Robert West appeals the order of the Superior Court (Penobscot
County,{1} Mead, C.J.) revoking his probation for failure to comply with
conditions of probation imposed as part of his 1995 sentence for gross
sexual assault.{2} As grounds for appeal, West asserts insufficiency of the
evidence and ineffective assistance of counsel. Because the appeal is
improperly before us as a direct appeal, we must dismiss the appeal.
[¶2] Pursuant to 17-A M.R.S.A. § 1207(2) (Supp. 1999), one whose
probation has been revoked by the Superior Court "may not appeal as of
right," but must satisfy the requirements of M.R. Crim. P. 37F, 37G and 37H.
Rule 37F provides that the defendant must file a notice of appeal in the
Superior Court within 20 days of the entry of the probation revocation order.
See M.R. Crim. P. 37F(b) & (c). West satisfied this requirement. However,
within the next 20 days, the defendant must file with the Law Court a
memorandum giving "specific and substantive reasons" why a certificate of
probable cause should issue. See M.R. Crim. P. 37F(d). West failed to file a
timely memorandum seeking a certificate of probable cause. After review,
the Law Court may grant a certificate of probable cause, which is a
prerequisite to consideration of the appeal on the merits. See M.R. Crim. P.
37F(h) & (i). West did not follow the proper procedures for consideration of
an appeal of a probation revocation order. Instead, he filed an appellate brief
on March 27, 2000. Accordingly, West's appeal is dismissed for failure to
comply with the filing requirements of M.R. Crim. P. 37F.{3}
The entry is:
Appeal dismissed.
Attorney for State:
Neale T. Adams, District Attorney
144 Sweden Street
Caribou, ME 04736
Attorney for defendant:
Christopher M. Leger, Esq.
Kelley Law Offices
P O Box 66
Caribou, ME 04736
FOOTNOTES******************************** {1} . This case was transferred
to Penobscot County for hearing on the revocation motion, following which
it was transferred back to Aroostook County. {2} . A previous appeal of
a probation revocation order was denied. State v. West, Mem. 98-53. This
appeal involves the fifth and sixth probation revocation proceedings in
this case. {3} . Because a court communication may have misled West to brief
the action as a direct appeal, we have also reviewed the matter as if it
had been properly presented through the certificate of probable cause process.
From the record it is apparent that a certificate of probable cause would
not have issued. The evidence supporting the revocation of probation is
very substantial, and the evidence of any prejudice from any alleged ineffective
assistance of counsel is totally lacking, even assuming that the ineffective
assistance of counsel issue could have been considered on direct appeal.
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