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Tubwell v. State

Court of Appeals of Mississippi

October 9, 2018

JOE CLYDE TUBWELL A/K/A JOE C. TUBWELL A/K/A JOE TUBWELL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/04/2017

          DESOTO COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM SR. JUDGE

          ATTORNEY FOR APPELLANT: JOE CLYDE TUBWELL (PRO SE)

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ROBERT E. HAYES JR. WAYNE DOUGLAS HOLLOWELL III

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          IRVING, P.J.

         ¶1. Joe Tubwell appeals, pro se, the judgment of the DeSoto County Circuit Court (circuit court), dismissing his appeal.[1] Because we find that the County Court of DeSoto County (county court) erroneously dismissed Tubwell's appeal and the circuit court, relying upon the effects of the erroneous dismissal, also erred in dismissing the appeal, we reverse and remand.

         FACTS

         ¶2. The issue in this case emanates from a criminal appeal taken from the Municipal Court of Southaven, Mississippi (municipal court), wherein Tubwell was found guilty on October 14, 2015, of a seat-belt violation involving our child-restraint law: Mississippi Code Annotated section 63-7-301 (Rev. 2013). Following his conviction, Tubwell was assessed a fine and court costs totaling $278. He filed his notice of appeal in the county court the following day, along with a motion to proceed in forma pauperis (IFP) and a pauper's oath affidavit.[2]

         ¶3. In the meantime, in cause number S2015-0013 in the county court, Tubwell, on April 14, 2015, had been granted IFP status.[3] Tubwell has appealed from the final judgment entered in that case, and that appeal is before us as case number 2017-KM-00795-COA.

         ¶4. Also on May 2, 2016, the county court, on its own motion, pursuant to Rule 12.02 of the Uniform Rules of Circuit and County Court (URCCC), [4] dismissed with prejudice Tubwell's appeal. The court stated that Tubwell "failed to perfect his appeal by paying all costs and bonds or getting permission to proceed [IFP]." As stated, at the time of his attempted appeal from the municipal court judgment, Tubwell filed in the county court, not the municipal court, a motion to proceed IFP, along with a pauper's oath affidavit. Also, on May 2, 2016, the county court issued an order of procedendo dismissing the appeal and remanding the case to the municipal court for execution of the October 14, 2015 judgment.

         ¶5. On May 4, 2016, Tubwell filed an appeal to the circuit court of the county court's May 2, 2016 order dismissing his original appeal. On the same day and in the same court, he also filed another motion for leave to proceed IFP, an affidavit in support of indigency, and a motion requesting an appeal bond pursuant to Rule 12.03 of the URCCC. On September 26, 2016, the City of Southaven filed a motion to dismiss in the county court. On April 4, 2017, the circuit court dismissed Tubwell's appeal with prejudice after finding that he was attempting to appeal a non-appealable order-the order of procedendo entered by the county court on May 2, 2016. It is from that order of dismissal that Tubwell now appeals.

         DISCUSSION

         ¶6. "On appeal, this Court applies a de novo standard when reviewing a trial court's grant of a motion to dismiss. Additionally, we recognize that whether a court obtained appellate jurisdiction is a question of law, which we review de novo." Alison v. State, 200 So.3d 469, 471 ...


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