
    Rockingham
    No. 80-048
    The State of New Hampshire v. James R. Gorman, III
    October 2, 1980
    
      
      Gregory H. Smith, acting attorney general, and Peter W. Mosseau, assistant attorney general, by brief for the State.
    
      James R. Gorman, III, by brief, pro se.
   Memorandum Opinion

On November 30, 1978, the Hampton District Court found the defendant guilty of criminal trespass (RSA 635:2). He appealed to the Rockingham County Superior Court but did not pay the $8 filing fee. His case, therefore, was remanded to the district court for execution of the sentence, and he was notified of the remand on January 15, 1979. On January 30, 1979, he notified the superior court that he considered the fee to be unconstitutional and refused to pay it. The defendant was ordered to report for imposition of sentence on April 25, 1979. He filed a motion in superior court to reinstate his appeal, which was denied by Bean, J. The defendant did not take exception to the denial.

On March 7, 1979, we decided, in State v. Cushing, 119 N.H. 147, 399 A.2d 297 (1979), that the filing fee requirement was unconstitutional. The defendant contended that this ruling should be made retroactive to apply to his case and moved in superior court to reinstate his appeal. The motion was denied by Temple, J., and defendant appealed to this court.

We expressly limited the holding in Cushing to “pending appeals where the fee has not yet been paid.” Id. at 148, 399 A.2d at 298. The defendant’s appeal was not pending on the date of the Cushing decision. He had been notified of the remand and, although he stated his claim of unconstitutionality, he took no appeal from the remand. His case is therefore unlike State v. Givner, 119 N.H. 778, 407 A.2d 824 (1979), where the defendant’s appeal was held to be pending because she was not notified of the remand until after the date of the Cushing decision and had no prior opportunity to appeal.

We hold that the decision in State v. Cushing does not apply to defendant’s case.

Appeal dismissed.  