                                                                        Supreme Court

                                                                        No. 2007-290-C.A.
                                                                        (N1/99-220A)

                     State                       :


                       v.                        :


             Byron W. de Weldon.                 :


                                           ORDER

       On April 19, 2004, the defendant pleaded nolo contendere to third-degree sexual assault

and possession of cocaine. On the same day, the defendant received a sentence of five years

imprisonment for the sexual-assault count, all of which was suspended, with probation, and a

consecutive one-year sentence for possession of cocaine, with thirty days to serve and the

remainder suspended.

       A little over a year later, on July 5, 2005, defendant filed a motion to vacate his plea. We

note that a motion to vacate a plea after a defendant has been sentenced is procedurally improper.

See State v. Castriotta, 80 A.3d 854, 855-56 (R.I. 2013). The hearing justice apparently treated

the motion as an application for postconviction relief, which she denied in a decision filed on

May 18, 2006. A judgment reflecting that denial was entered on June 21, 2006. Although

defendant purportedly appeals from that judgment, he did not file a notice of appeal.

       On September 4, 2007, defendant filed a handwritten letter in which he wrote that he

wished to appeal a ruling that the hearing justice made on August 8, 2007. At that time, no order

had been entered memorializing any ruling from that date. On October 28, 2009, however, an

order denying defendant’s application for postconviction relief was entered nunc pro tunc to

                                               -1-
August 8, 2007. Even if that order was the ruling being challenged in this appeal, the notice of

appeal of that order was untimely.

       The defendant did not appeal the denial of his motion to vacate his plea. Accordingly, we

conclude that this matter is not properly before us. See Article I, Rule 3(a) of the Supreme Court

Rules of Appellate Procedure; see also State v. Hallenbeck, 878 A.2d 992, 1020 (R.I. 2005)

(“‘Rule 3(a) makes clear that failure to file a timely notice of appeal renders any purported

appeal invalid[.]’ * * * No rule exists * * * in this jurisdiction that provides for the proper

consideration of an issue on appeal for which a notice of appeal never was filed.” (quoting

Martin v. Lilly, 505 A.2d 1156, 1159 (R.I. 1986))). We therefore deny and dismiss the appeal.

The papers are remanded to the Superior Court.



       Entered as an Order of this Court this 25th day of April, 2014.

                                                         By Order,



                                                         ____________/s/________________
                                                                    Clerk




                                              -2-
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      State v. Byron W. deWeldon.

CASE NO:            No. 2007-290-C.A.
                    (N1/99-220A)

COURT:              Supreme Court

DATE ORDER FILED:   April 25, 2014

JUSTICES:           Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Newport County Superior Court

JUDGE FROM LOWER COURT:

                    Associate Justice Melanie Wilk Thunberg

ATTORNEYS ON APPEAL:

                    For State: Jane M. McSoley
                               Department of Attorney General

                    For Defendant: John Sylvia, Esq.
