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McCoy v. State

Court of Appeals of Mississippi

June 9, 2015

TIMOTHY ALLEN MCCOY A/K/A TIMOTHY MCCOY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/11/2013

NEWTON COUNTY CIRCUIT COURT HON. MARCUS D. GORDON, TRIAL JUDGE.

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, GEORGE T. HOLMES JUSTIN TAYLOR COOK

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BILLY L. GORE JOHN R. HENRY JR.

BEFORE GRIFFIS, P.J., ISHEE AND MAXWELL, JJ.

MAXWELL, J.

¶1. Following his convictions, Timothy Allen McCoy timely filed a motion for a new trial. This action postponed the running of the thirty-day window to appeal his convictions until the entry of the order disposing of his post-trial motion. M.R.A.P. 4(e). Months later, McCoy filed a notice of appeal, even though his motion for a new trial was still pending. While Rule 4(e) clearly permits the premature filing of a notice of appeal, it is equally clear such notice is "ineffective until the date of the entry of the order disposing" of a timely post-trial motion. Here, the record contains no entry of an order disposing of McCoy's motion for a new trial-either before or after he filed his notice of appeal. Thus, under Rule 4(e), his notice of appeal is "ineffective."

¶2. Without an effective notice of appeal, this court lacks jurisdiction to consider McCoy's appeal. We therefore dismiss.

Procedural History

I. Conviction and Sentence

¶3. On April 8, 2013, McCoy was convicted of four counts of sexual battery and one count of exposing another to human immunodeficiency virus (HIV). See Miss. Code Ann. § 97-3-95(1)(c) (Rev. 2014) (criminalizing the sexual penetration of a child at least fourteen but under sixteen years old by a person more than thirty-six months older than the child); Miss. Code Ann. § 97-27-14(1) (Rev. 2014) (making the knowing exposure of another to HIV a felony). Three days later he was sentenced. For the sexual batteries, he received four consecutive sentences totaling 75 years. For exposing another to HIV, he received a concurrent ten-year sentence.

II. Motion for a New Trial

ΒΆ4. Seven days later, on April 18, 2013, McCoy filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial. This motion challenged the weight and sufficiency of the evidence. It also attacked the circuit court's refusal of McCoy's proposed jury instructions, the court's evidentiary rulings, and the constitutional effectiveness of McCoy's trial counsel. Because his motion was filed within the ten-day requirement of Uniform Rule of Circuit and County Court 10.05, the motion ...


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