DATE OF JUDGMENT: 04/12/96 TRIAL JUDGE: HON. GRAY EVANS COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF DISPOSITION REVERSED AND REMANDED - 2/19/98 MOTION FOR REHEARING FILED: MANDATE ISSUED:
Before Sullivan, P.j., Banks And Mills, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice, For The Court:
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A
Christopher Farmer was indicted on May 10, 1995, in the Circuit Court of Leflore County for aggravated assault with a deadly weapon pursuant to Miss Code Ann. § 97-3-7. He petitioned the trial court on May 19, 1995, to enter a guilty plea on his behalf. The trial court accepted Farmer's guilty plea on May 30, 1995, and on June 12, 1995, he was sentenced to twenty years for his crime. Farmer filed a post- conviction relief motion based on his assertion that his guilty plea was not knowingly, intelligently and voluntarily entered. A hearing was held on February 15, 1996, where the trial court dismissed the motion to vacate the conviction and sentence by order, dated and filed April 12, 1996.
During the hearing on the motion, the court determined that, other than the assistance of counsel, none of the reasons given by Farmer had any merit. There seemed to be much dispute in the legal community as to the application of the Senate Bill No. 2175 to defendants who committed alleged offenses before July 1, 1995 but would be convicted and sentenced after the effective date. A relevant part of the transcript on this point states: BY THE COURT: Mr. Vining, the way I recall what was going on at the time, and Mr. Holly can correct me, several of the lawyers came to me and asked me my opinion and I told them my opinion was that the 85% law could not possibly attach to a person whose crime was committed before the effective date of the Act but to bring this to the attention of people and tell them they didn't know but that it was the Court's opinion that it did not - would not apply;
Due to this uncertainty, the court at first believed that the present motion should be continued until the Supreme Court could determine this issue of law. Upon further conversation with Mr. Vining, Farmer's new attorney, the Judge decided to deny Farmer's petition where the unsettled application of the 85% rule to certain defendants could be properly addressed by the Supreme Court on appeal.
The first issue this Court must address is whether it has jurisdiction to hear this appeal due to the fact that the appeal was prematurely filed. Rule 2(a)(1) of the Mississippi Rules of Appellate Procedure reads, "Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5." Since this case does not involve an interlocutory appeal, Rule 5 is inapplicable to the analysis. Instead, this is an appeal from a dismissal under the Post-Conviction Relief Act; and it must satisfy "such terms and conditions as are provided for in criminal cases." Miss. Code Ann. § 99-39-25 (1) (1994). Therefore, Rule 4 (a) is the controlling rule, and the relevant part reads as follows:
(a) Appeal and Cross-Appeals in Civil and Criminal Cases. In a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from a trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from....
This Court has explained that the 30 day limit in filing a notice of appeal is to be strictly enforced. Tandy Electronics, Inc. v. Fletcher, 554 So. 2d 308, 310-11 (Miss. 1989); Kimbrough v. Barnwell, 680 So. 2d 799, 801 (Miss. 1996). As previously stated by this Court, "Filing a notice is a simple act, and a party must do all it could reasonably be expected to do to perfect the appeal in a timely fashion" Matter of Estate of Ware, 573 So. 2d 773, 775 (Miss. 1990).
In the present case, the appellant prematurely filed his appeal before the order of dismissal was filed. It is clear from the record that the appellant believed he had followed the law when perfecting this appeal since he sought and was granted an out of time appeal on March 20, 1996, believing that he was past the thirty day time limit. The notice of appeal explained that petitioner's motion was denied on February 15, 1996, and it was this date that appellant's counsel erroneously believed started the thirty days to perfect the appeal. The lower court apparently found "excusable neglect" based on the illness of Counsel's mother, when it stated "it finds the Motion well argued." Appellant's counsel asserted in his reply brief that he heard the Judge say "ordered", and believed his draft of the order was merely ...