Robert L. Dixon appeals his two-count conviction for Dealing in Cocaine, a Class B Felony. We sua sponte raise the issue whether this court has jurisdiction to hear
Dixon was sentenced on July 5, 1989. He filed a motion to correct errors and memorandum in support on September 4, 1989, sixty-one (61) days after sentencing. The trial judge denied the motion on September 12, 1989. Dixon filed his praecipe on September 14, 1989.
The Indiana Supreme Court recently amended the rules governing appeals. The first set of amendments, effective January 1, 1989, was quickly superseded by a second set that became effective February 16, 1989. The February 16, 1989 amendment, in effect at the time Dixon was sentenced, provides, in pertinent part:
Ind.Crim.Rule 16 (further amended November 13, 1989, effective on January 1, 1991).
Ind.Trial Rule 59 provides in pertinent part:
Thus, a motion to correct error is not a prerequisite for an appeal of a criminal case unless the issue raised is based on newly discovered evidence. When newly discovered evidence is alleged, a motion to correct error is mandatory and a failure to file the motion in a timely manner precludes appellate review. Skolnick v. State (1981), 275 Ind. 461, 417 N.E.2d 1103, 1104. Timely filing is a jurisdictional act and an absolute precondition to appeal. Matter of Guardianship of Green (1988), Ind. App., 525 N.E.2d 634, 635.
Under the new appellate rules, a party filing a motion to correct error need not raise every issue in the motion that will be raised on appeal. To be preserved, only those issues making the motion mandatory need to be raised in the motion. T.R. 59(D). In his motion to correct errors, Dixon raised the issues (1) whether the trial court erred in denying Dixon's motion for change of venue, and (2) whether the evidence was sufficient to support the convictions. On appeal, Dixon raises the issue whether the trial court erroneously excluded certain testimony.
Clearly, Dixon did not raise an issue that mandated filing a motion to correct error in order to preserve an appeal. His was an optional motion filed after the thirty (30) day time limit. The issue facing us is whether an optional motion to correct error (which is not mandatory but filed anyway) must be timely filed in order to preserve the right to an appeal of all issues.
Our Supreme Court intended to streamline the appeals process by dispensing with the motion to correct error except in two specific circumstances. Thus, the motion to correct error is no longer an automatic prerequisite for appeal. Where it is mandatory, it must be filed within thirty (30) days of the judgment rather than sixty (60) days as required by the old rules. If a motion is not filed, the praecipe must be filed within thirty (30) days of the judgment. Ind.Appellate Rule 2. To hold that
We hold that if an appellant files a motion to correct error that is not mandatory under the rules, the motion must be filed within thirty (30) days after the judgment in order to preserve the appellant's right to an appeal of all issues.
In the case before us, Dixon filed his motion to correct error on September 4, 1989, sixty-one (61) days after the sentence was imposed.
Even if Dixon was relying on the filing of his praecipe we would have to dismiss this appeal. The praecipe must be filed within thirty (30) days of the judgment, A.R. 2, and Dixon's was not filed until seventy-one (71) days after the judgment.
MILLER, P.J., and STATON, J., concur.