JAMES WESLEY SCOTT A/K/A JAMES W. SCOTT A/K/A JAMES SCOTT Appellant
STATE OF MISSISSIPPI Appellee
D. MAXWELL II, JUSTICE
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.
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
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:
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
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.
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.
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.
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.
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)).
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