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Christmas v. State

Supreme Court of Mississippi

January 25, 2018

LARRY D. CHRISTMAS, JR. a/k/a LARRY D. CHRISTMAS a/k/a LARRY CHRISTMAS
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 08/15/2016

         HARRISON COUNTY CIRCUIT COURT, ROGER T. CLARK, TRIAL JUDGE

          TRIAL COURT ATTORNEY: HERMAN F. COX

          ATTORNEY ATTORNEY FOR APPELLANT: LARRY D. CHRISTMAS, JR. (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, SCOTT STUART

          BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

          MAXWELL, JUSTICE

         ¶1. 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 affirm.

         Background Facts and Procedural History

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.[1]

         ¶5. 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 ...


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