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State v. Daly

Court of Appeals of Connecticut

December 2, 2008

STATE of Connecticut
v.
Michael DALY.

Argued Sept. 5, 2008.

Page 1041

Suzanne Z. Curtis, assistant public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony J. Spinella, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and DiPENTIMA and BEACH, Js.

DiPENTIMA, J.

[111 Conn.App. 398] The dispositive issue in this appeal is whether a trial court has jurisdiction to consider an objection to the entry of a nolle prosequi filed seven weeks after the nolle was entered in the defendant's presence. The defendant, Michael Daly, appeals from the judgment of the trial court denying his objection to the entry of a nolle. We conclude that the court lacked jurisdiction to consider the objection. Accordingly, we reverse the judgment and remand the case to the trial court with instruction to dismiss the defendant's objection.

The record reveals the following relevant facts and procedural history. The defendant was charged with five crimes in three separate files. In CR-06-0205321, the defendant was charged with interfering with an officer in violation of General Statutes § 53a-167a. In CR-06-0205320, the defendant was charged with possession of narcotics in violation of General Statutes § 21a-279(a) and use of drug paraphernalia in violation of General Statutes § 21a-267(a). In CR-06-0205317, the defendant was charged with robbery in the third degree in violation of General Statutes § 53a-136 and larceny in the third degree in violation of General Statutes § 53a-124. On February 21, 2007, the defendant pleaded guilty under the Alford doctrine [1] to the charges of robbery in the third degree, larceny in the third degree and possession of narcotics. Following the imposition of the sentence, the court stated: " Costs and fees will be imposed. Nolle noted open counts." The defendant's attorney clarified with the court that costs would be waived. The court clerk then asked: " And a nolle on the open file, Your Honor?" The court responded: " Open file." A nolle was entered for the charges of interfering with an officer and use of drug paraphernalia.

[111 Conn.App. 399] On February 28, 2007, the defendant, representing himself, filed a motion for transcript, requesting a copy of the transcript of the February 21, 2007 proceeding. In this motion, he stated that he was not present when the nolle was entered. On

Page 1042

March 5, 2007, the court denied the defendant's motion, noting that " [the defendant] was present during the entering of the nolle." On March 19, 2007, the defendant filed a motion for reconsideration of the court's denial of his motion for transcript, which the court denied on March 20, 2007. On April 11, 2007, the defendant filed an objection to the entry of the nolle, again stating that he was not present when the nolle was entered. The court denied the objection on April 12, 2007. In a subsequent memorandum of decision, dated February 8, 2008, the court explained that it denied the defendant's objection to the entry of a nolle on the basis of its finding that the defendant was present in court during the entering of the nolle. On August 7, 2007, the defendant filed this appeal from the denial of his objection to the entry of a nolle.

On appeal, the defendant claims that the court improperly denied his objection to the entry of the nolle because the state did not comply with General Statutes § 54-56b and Practice Book § § 39-29 and 39-30. Specifically, the defendant argues that because the prosecutor did not initiate the nolle or comply with the requirements of the § 54-56b and Practice Book § § 39-29 and 39-30, the court abused its discretion when it noted the nolle on its own volition. Because the defendant did not object timely to the court's decision to allow the nolle, but instead appeals from its denial of his later objection to that disposition, we decline to consider the merits of this claim. Rather, we conclude that the court did not have jurisdiction to consider the defendant's objection.[2]

[111 Conn.App. 400] Preliminarily, we note that a fact critical to our jurisdictional analysis was not properly challenged in the defendant's appeal. The defendant asserts in his brief that he was not aware that the nolle was entered. Specifically, he argues that it is " pretty certain" that either he had left the courtroom or was in the process of leaving the courtroom when the court noted the nolle or that he misunderstood what was happening. The defendant reasons that we can infer that he was unaware the nolle was entered on the basis of his subsequent motions and his argument Before this court. Such speculation is not sufficient to challenge the trial court's factual finding that " [the defendant] was present during the entering of the nolle" ; see State v. Brown, 256 Conn. 291, 311-12, 772 A.2d 1107 (nonreviewability of claim when analysis and authority lacking), cert. denied, 534 U.S. 1068, 122 S.Ct. 670, 151 L.Ed.2d 584 (2001); and we do not have grounds to conclude otherwise.[3] Moreover, it is well

Page 1043

established that as an appellate tribunal, we do not find facts. Gibson v. Commissioner of Correction, 98 Conn.App. 311, 318 n. 5, 908 A.2d 1110 (2006), cert. denied, 281 Conn. 908, 916 A.2d 49 (2007); [111 Conn.App. 401] State v. Zollo, 36 Conn.App. 718, ...


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