
    State vs. John H. Howard.
    JULY 28, 1960.
    Present: Condon, C. J., Roberts, Paolino, Powers and Frost, JJ.
   Condon, C. J.

This is a petition for leave to file out of time an appeal from a sentence of the district court of the eighth judicial district in accordance with the provisions of general laws 1956, §9-21-4. Pursuant to the citation, the papers have been certified to this court.

On July 4, 1958 petitioner was adjudged guilty of being a lewd and wanton person and was thereupon sentenced to a term of three years in the adult correctional institutions. However, such sentence was suspended and petitioner was placed on probation. On June 1, 1959 he was arrested, and on June 3 he was duly committed for violation of his probation. He alleges in his petition that within five days thereafter, to wit, June 5, he claimed an appeal through an officer at the institutions but by reason of accident such appeal was not filed in court.

Pontarelli & Berberian, Aram K. Berberian, for petitioner.

/. Joseph Nugent, Attorney General, Carmine A. Pao, Special Counsel, for State.

It is clear from the above facts that the petitioner is not entitled to invoke G. L. 1956, §9-21-4, because more than one year has elapsed from the entry of the judgment of the district court imposing sentence. The petitioner assumes that such sentence was imposed on June 3, 1959. In this he is obviously mistaken. That was the date on which his probation was revoked and he was ordered to be committed to serve the sentence which had been imposed on July 4, 1958. At the expiration of five days thereafter such sentence became final and irrevocable. If the petitioner intended to appeal from such sentence he should have done so within that period and declined to accept probation. Since he did not file the instant petition within one year after the imposition of sentence on July 4, 1958, it is now too late for him to obtain the benefit of §9-21-4. We may also observe that §9-21-4 does not appear to provide for relief for failure to claim an appeal out of time. However, we have considered the case as though it did fall under that section.

The petition is denied, and the papers certified from the district court are ordered returned thereto.  