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Scott v. State

Supreme Court of Mississippi

December 1, 2017

JAMES WESLEY SCOTT A/K/A JAMES W. SCOTT A/K/A JAMES SCOTT Appellant
v.
STATE OF MISSISSIPPI Appellee

          ORDER

          JAMES D. MAXWELL II, JUSTICE

         Four of the justices of this Court are of the opinion that the judgment of the Court of Appeals should be affirmed, and four are of the opinion that it should be reversed. Consequently, that judgment must be, and is, affirmed.

         Issuing conflicting opinions on the issues raised on certiorari would serve no purpose, as neither opinion would carry any authority. Hentz v. State, 152 So.3d 1139, 1143 (Miss. 2014) (Randolph, P.J., specially concurring) (citing Hertz v. Woodman, 218 U.S. 205, 212-14, 30 S.Ct. 621, 622-23, 54 L.Ed. 1001 (1910); Durant v. Essex Co., 74 U.S. 107, 7 Wall. 107, 19 L.Ed. 154 (1868); Etting v. Bank of U.S., 24 U.S. 59, 78, 11 Wheat. 59, 6 L.Ed. 419 (1826); Rockett Steel Works v. McIntyre, 15 So.2d 624 (Miss. 1943)).

          Accordingly, as the judgment of the Court of Appeals has not been decided to be erroneous by a majority of the justices sitting in this case, the judgment of the Court of Appeals is affirmed without opinion. The costs on appeal are assessed to Forrest County.

         SO ORDERED.

          AFFIRMED: RANDOLPH, P.J., MAXWELL, BEAM AND CHAMBERLIN, JJ. SEPARATE WRITTEN STATEMENT OBJECTING TO THE ORDER BY KITCHENS, P.J., JOINED BY WALLER, C.J., KING AND COLEMAN, JJ. ISHEE, J., NOT PARTICIPATING.

          KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

         ¶1. Because James Wesley Scott's constitutional right to a speedy trial was violated by the nearly five-year delay between his arrest and trial, I would reverse his conviction and render judgment in his favor. Accordingly, I object to the order affirming the judgment of the Mississippi Court of Appeals.

         ¶2. On September 26, 2011, a Forrest County grand jury indicted James Scott for attempted rape, kidnapping, and burglary of a dwelling. He was arraigned on March 14, 2012. Scott filed a motion for recusal of the trial judge on April 12, 2012. No ruling on that motion appears in the record; however, the trial judge recused on his own motion on September 6, 2012. This Court appointed a special judge on September 20, 2012.

         ¶3. On March 24, 2014, and May 2, 2014, respectively, Scott, pro se, filed motions to dismiss in which he alleged speedy trial violations. His appointed counsel filed a third motion to dismiss alleging speedy trial violations on August 14, 2014. Scott's third motion was denied, and his trial took place on August 19 and 20, 2014.

         ¶4. A Forrest County jury found Scott guilty of all three charges and he was sentenced, as an habitual offender under Mississippi Code Section 99-19-83, to three consecutive life sentences without the possibility of parole. Scott then filed a Motion for a Judgment Notwithstanding the Verdict, or in the alternative, for a New Trial, which the trial court denied. Scott appealed his conviction, and this Court assigned his case to the Court of Appeals, which affirmed. Scott v. State, 2016 WL 3391630, *19 (Miss. Ct. App. June 21, 2016). This Court granted Scott's petition for a writ of certiorari.

         ¶5. On direct appeal, Scott argued that his constitutional right to a speedy trial was violated. After analyzing the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court of Appeals held that it was not.

         ¶6. The Sixth Amendment to the United States Constitution guarantees criminal defendants "the right to a speedy and public trial . . . ." U.S. Const. amend. VI. Additionally, Article 3 Section 26, of the Mississippi Constitution guarantees criminal defendants a "speedy and public trial by an impartial jury. . . ." Miss. Const. art. 3, § 26. "A formal indictment or information or an arrest-whichever first occurs-triggers the constitutional right to a speedy trial." McBride v. State, 61 So.3d 138, 142 (Miss. 2011) (citing United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971); Smith v. State, 550 So.2d 406, 408 (Miss. 1989)).

         ¶7. In Barker, the United States Supreme Court set forth four factors that appellate courts must balance and consider when a defendant contends his constitutional right to a speedy trial has been violated: length of delay, reason for delay, whether the defendant asserted his right to a speedy trial, and prejudice to the defendant. Barker, 407 U.S. at 530. The Barker Court explained that each case ...


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