GREG WILLIAMS A/K/A GREGORY W. WILLIAMS A/K/A WILLIAMS, GREGORY WAYNE A/K/A GREGORY WILLIAMS, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
DATE OF JUDGMENT: 10/22/2012.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. ROGER T. CLARK. TRIAL COURT DISPOSITION: AFFIRMED DISMISSAL OF APPEAL.
FOR APPELLANT: BLEWETT W. THOMAS.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BRAD ALAN SMITH.
ROBERTS, J. LEE, C.J., GRIFFIS, P.J., ISHEE, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.; BARNES AND JAMES, JJ., JOIN IN PART. JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, J.
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
¶1. The appellant, Greg Williams, was convicted in justice court of misdemeanor home-repair fraud in violation of Mississippi Code Annotated section 97-23-103(5)(a) (Rev. 2006). The issue on appeal is whether it was reversible error for the circuit court to have affirmed the county court's dismissal of Williams's appeal for failure to timely file a notice of appeal, cost bond, and appearance bond as required by Uniform Rule of Circuit and County Court 12.02.
¶2. Finding that the dismissal was proper, we affirm.
Facts and Procedural History
¶3. In December 2005, homeowner Roslyn Robertson and Williams entered into a contract for him to repair damage to her residence caused by Hurricane Katrina. On August 21, 2007, Robertson signed an affidavit alleging that Williams committed felony home-repair fraud against her in violation of Mississippi Code Annotated section 97-23-103. The district attorney's office declined to prosecute the matter as a felony, and it was referred to the county prosecutor's office. On February 9, 2009, the justice court approved the prosecutor's handwritten amendment of the affidavit to
reduce it from a felony charge to a misdemeanor charge.
¶4. Williams's attorney sought and obtained continuances in March and June 2008. Trial was finally set for May 11, 2009, almost two years after the criminal affidavit. On May 9, 2009, Williams's attorney moved again to postpone the trial. The motion alleged only that Williams's counsel was unavailable on May 11, and said nothing about a federal subpoena served on Williams, as he later alleged in his July 8, 2009 motion for an out-of-time appeal. The motion to continue was denied and trial was held on May 11, 2009. Williams was not present, although his attorney was. Williams was found guilty and sentenced to serve six months in the county jail, but the sentence was suspended. He was placed on six months of reporting probation. The sentence further imposed a $500 fine, $145 in assessments, and $5,000 in restitution.
¶5. On June 4, 2009, Williams's attorney faxed a notice of appeal to the circuit court clerk, without any bond. Williams did not submit a cost bond or an appeal bond as required by Rule 12.02. In fact, his notice of appeal stated that it was filed " without supersedeas." The appeal was not docketed.
¶6. The first official docket entries in county court concerning this appeal were filed on July 8, 2009, some fifty-eight days after the conviction and sentence on May 11, 2009. These docket entries reflect, and the file contains, a notice of appeal and a motion for an out-of-time appeal filed that day. The docket entries for July 9, 2009, reflect a $5,000 appearance bond by " A Sonshine Bail Bonds, Inc." The appearance bond is defective for at least three reasons. The bond is returnable to justice court rather than to county court. A power of attorney authorizing " Robert Cohen" to sign bonds on behalf of A Sonshine Bail Bonds was filed, but the appearance bond was not signed by Cohen; it was instead signed by " Stacy Goodison." Perhaps
most importantly, although there was a signature line for approval of the bond by either a judge or the clerk, the signature line is blank. As to the second bond required to perfect an appeal, there is no reference in the record to a cost bond at all. Only a docket entry indicates that a cash payment of $220 was tendered to the clerk by Williams's attorney.
¶7. Williams fired and rehired his initial counsel several times after May 11, 2009, and placed a lien on his house. His counsel filed a motion to withdraw in August and was released by order of the court dated August 28, 2009. New counsel (currently representing Williams in this appeal) entered the case on November 12, 2009.
¶8. The county prosecutor moved to dismiss the appeal because it was not timely filed in compliance with Rule 12.02. A hearing was held on the motion to dismiss the appeal on November 18, 2009. Williams was represented by his present counsel. The county court dismissed the appeal as untimely under Rule 12.02 on December 7, 2009. In a letter sent to the parties dated December 7, 2009, explaining the ruling, the court noted that Rule 12.02 was controlling and that a " rule not enforced is not a rule." The court expressed the view that Rule 12.02 was " mandatory, and in my judgment, jurisdictional."
¶9. Williams filed a motion to reconsider, arguing that the court should exercise its discretion to overlook the late appeal and that he had received ineffective assistance of counsel regarding the late appeal. The county court denied the motion to reconsider on March 31, 2010.
¶10. Williams timely appealed to the circuit court. Following briefing by the parties and a hearing, the circuit court affirmed the dismissal of the appeal and remanded for execution of the sentence. Williams timely appealed the dismissal to this Court.
¶11. Williams raises the following issues which we have recharacterized for clarity: (1) the justice court exceeded its jurisdiction by imposing a $5,000 fine; and (2) counsel was ineffective in failing to properly perfect the appeal, which entitles Williams to a discretionary out-of-time appeal.
¶12. Before we may consider Williams's issues, we must first consider our jurisdiction to hear this appeal.
¶13. The Mississippi Supreme Court has sole authority for the adoption of rules of court. The Mississippi Rules of Appellate Procedure apply to appeals to the Mississippi Supreme Court and appeals it assigns to this Court. By enacting Rule 2(c), the Mississippi Supreme Court has permitted " suspension" of these appellate rules for " good cause" shown to the supreme court or this Court. M.R.A.P. 2(c).
¶14. The Mississippi Rules of Appellate Procedure do not govern appeals from justice or municipal courts to county or circuit court, however. Appeals from justice court are governed by Rule 12.02. This is a distinction we made clear in Reeves v. City of Crystal Springs, 54 So.3d 322 (Miss.Ct.App. 2011). In Reeves, we rejected an argument that Rule 4(h) permitted the appellate court to excuse untimely notices of appeal based upon " excusable neglect." M.R.A.P. 4(h). We stated:
We agree with the City's argument that Rule 4(g) is not applicable to appeals from municipal court to circuit court. Rule 1 of the Mississippi Rules of Appellate Procedure states that the rules " govern procedure in appeals to the Supreme Court of Mississippi and the Court of Appeals of the State of Mississippi, and proceedings on petitions for
writs or other relief which the Supreme Court or the Court of Appeals . . . is empowered to grant." As already stated, appeals from municipal court are governed by Rule 12.02 of the Uniform Rules of Circuit and County Court. There is no " excusable neglect" provision or condition for an extension applicable to that rule. While Rule 12.02(C) " provides for liberal amendments to allow a case to go to trial[,] . . . this language only applies to an appeal that is timely perfected." Hill [ v. City of Wiggins ], 984 So.2d [1086, 1089 (¶ 14) (Miss.Ct.App. 2008)] (citing Riley [ v. Town of Lambert ], 856 So.2d [721, 725 (¶ 6) (Miss.Ct.App. 2003)]. While we acknowledge that this interpretation may result in a seemingly unfair dismissal of a case, this Court must interpret the rule as written. Modifications to the Uniform Rules of Circuit and County Court may only be made by the Mississippi Supreme Court.
Reeves, 54 So.3d at 326 (¶ 14). We noted that " [t]his Court has applied a strict standard when interpreting Rule 12.02" and affirmed the dismissal of the untimely appeal from municipal court. Reeves, 54 So.3d at 325 (¶ 10) (citing Hill, 984 So.2d at ...