In the Matter of W.S., Alleged to Be Seriously Mentally Impaired ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0702
Filed March 6, 2019
IN THE MATTER OF W.S.,
Alleged to Be Seriously Mentally Impaired,
W.S.,
Respondent-Appellant.
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Appeal from the Iowa District Court for Johnson County, Paul D. Miller,
Judge.
W.S. appeals from an order finding he remains seriously mentally impaired.
APPEAL DISMISSED.
Cami Eslick of Eslick Law, Indianola, for appellant.
Thomas J. Miller, Attorney General, and Gretchen Kraemer, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., Doyle, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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POTTERFIELD, Presiding Judge.
On March 20, 2018, the district court found W.S. remained seriously
mentally impaired. On April 20, W.S. appealed the order, arguing the State failed
to prove he lacked sufficient judgment to make reasonable decisions about his
treatment and there was not substantial evidence of dangerousness because there
was no evidence of a recent overt act, attempt, or threat.
Before this case was transferred to our court, the supreme court raised on
its own motion the issue of jurisdiction after it appeared notice of appeal might
be untimely. See Root v. Toney, 841 N.W.2d 83, 87 (Iowa 2013) (noting court is
to address jurisdictional issue of timeliness of appeal before reaching merits even
if parties do not raise the issue). W.S. was ordered to file a statement concerning
whether this court has jurisdiction to hear the appeal, and the State was permitted
to file a response. Counsel for W.S. states that she “had neglected to take into
account that there are [thirty-one] days in January” and argues we should excuse
her neglect in filing the appeal one day late and consider the appeal on its merits.1
The State argues we do not have jurisdiction to consider this appeal. The supreme
court ordered the jurisdictional issue be considered with the appeal and transferred
the appeal to our court.
Iowa Rule of Appellate Procedure 6.101 provides that notices of appeal
must be filed within thirty days after the filing of the final order or judgment. Timely
notice of appeal is jurisdictional. Jensen v. State, 312 N.W.2d 581, 582 (Iowa
1
We note that the number of days in January did not affect the timeliness of the notice of
appeal here, although the number of days in March does affect the calculation of thirty
days.
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1981). It was within W.S.’s control to appeal in a timely fashion. Counsel’s mistake
is not an extraordinary circumstance like those for which we have previously
granted delayed appeals. See, e.g., In re L.H., 890 N.W.2d 333, 339 (Iowa Ct.
App. 2016) (allowing delayed appeal where the self-represented appellant filed the
appeal in the wrong court and the appeal would have been timely if filed within the
correct court). Because the appeal was not timely filed, we lack jurisdiction to
consider the merits of the appeal. We dismiss the appeal for lack of jurisdiction.
APPEAL DISMISSED.