LARRY D. CHRISTMAS, JR. a/k/a LARRY D. CHRISTMAS a/k/a LARRY CHRISTMAS
STATE OF MISSISSIPPI
OF JUDGMENT: 08/15/2016
COUNTY CIRCUIT COURT, ROGER T. CLARK, TRIAL JUDGE
COURT ATTORNEY: HERMAN F. COX
ATTORNEY ATTORNEY FOR APPELLANT: LARRY D. CHRISTMAS, JR. (PRO
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, SCOTT
RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
The circuit court dismissed as untimely Larry Christmas's
misdemeanor appeal from county court. Christmas appealed the
circuit court's dismissal to this Court. Because the
record shows Christmas's notice of appeal was filed too
late and that Christmas failed to request an extension, we
Facts and Procedural History
On December 15, 2015, Christmas was tried de novo in
the County Court of Harrison County, First District, on two
misdemeanor traffic charges-(1) improper turn and (2) no
proof of liability insurance. At the close of trial, the
county court found Christmas not guilty on the charge of
improper turn but guilty of no proof of liability insurance.
The court fined Christmas $200 plus court costs and remanded
the matter to the justice court to enforce this penalty.
The county court's final judgment was entered January 13,
2016, giving Christmas thirty days to file his notice of
appeal to circuit court. On February 9, Christmas filed a
"Motion to Vacate Final Judgment and Order." Then
on February 12, 2016-exactly thirty days after the final
judgment was entered-Christmas mailed a notice of appeal and
a $166 money order to the Harrison County Circuit Clerk. Due
to President's Day being the following Monday, the post
office did not deliver the mailing until Tuesday, February
16, 2016. Christmas's notice was stamped filed on
February 17-five days after it was due.
On June 27, 2016, the circuit court requested Christmas show
cause why his appeal should not be dismissed as untimely.
Christmas responded in writing on July 11, 2016. First, he
asserted his notice of appeal was timely because it
was filed on February 12-the date he mailed it. Second, he
argued his February 9 motion to vacate tolled the time to
file his appeal. Third, he claimed he had complied with all
filing requirements by February 12. And, but for the
clerk's office supposedly closing early, his notice would
have been filed that day.
The circuit court dismissed Christmas's appeal as
untimely. Because the motion to vacate was not filed within
ten days of the final judgment, it had not tolled the
thirty-day time period to file an appeal. See
M.R.A.P. 4(e); URCCC 10.05. Thus, Christmas had until
February 12, 2016, to file-not mail, but file-his
notice of appeal. See URCCC 12.03. And the record
clearly showed ...