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Smith v. State

Court of Appeals of Mississippi

May 21, 2019

CARLOS BOYD SMITH A/K/A CARLOS SMITH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/05/2017

          STONE COUNTY CIRCUIT COURT HON. ROGER T. CLARK Judge.

          ATTORNEY FOR APPELLANT: CARLOS BOYD SMITH (PRO SE)

          ATTORNEY FOR APPELLEE: JEFFREY A. KLINGFUSS

          BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.

          TINDELL, J.

         ¶1. Carlos Boyd Smith ("Smith") appeals the denial of his petition for post-conviction relief by the Stone County Circuit Court. In his petition, Smith sought permission from the circuit court to proceed with a pro se out-of-time appeal. The circuit court denied his motion, finding that it had no jurisdiction to allow Smith's out-of-time appeal due to the untimeliness of his request. Because more than 180 days had passed since the entry of the final judgment of conviction, we find that the circuit court was within its discretion to deny the petition for lack of jurisdiction. Further, because Smith has failed show good cause, pursuant to Mississippi Rule of Appellate Procedure 2(c), this Court declines Smith's request to suspend the appellate rules and allow his out-of-time appeal to proceed. Accordingly, we affirm the circuit court's decision.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On January 22, 2016, a jury convicted Smith of sexual battery. Smith was sentenced on February 15, 2016, to twenty-two years in the custody of the Mississippi Department of Corrections, to serve day for day. The circuit court denied Smith's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial on that same day, as well. No direct appeal was timely filed in this case. On June 2, 2017, Smith filed a petition for post-conviction relief to proceed with a pro se out-of-time appeal, which the circuit court denied on July 5, 2017. In its order, the circuit court denied Smith's petition for lack of jurisdiction because he sought an out-of-time appeal well past the 180-day deadline imputed by the Mississippi Rules of Appellate Procedure. Smith now appeals this decision.

         ANALYSIS

         ¶3. Mississippi Rule of Appellate Procedure 4(a) requires that notices of appeals "shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Where a notice of appeal is not timely filed, the Rules allow a circuit court to reopen the time period for appeal if the court finds "(a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced." M.R.A.P. 4(h). But, the circuit court "lacks jurisdiction to consider a request for an out-of-time appeal more than 180 days after the entry of the final judgment, and denials of such requests will be reviewed for abuse of discretion." Whittaker v. State, 199 So.3d 1261, 1263 (¶6) (Miss. Ct. App. 2016) (citing Edmond v. State, 991 So.2d 588, 589 (¶5) (Miss. 2008)).

         ¶4. The final judgment of conviction in this case was entered on January 22, 2016, and the circuit court formally denied Smith's motion for new trial on February 15, 2016. On June 2, 2017, more than fifteen months later, Smith filed his petition for out-of-time appeal. As the circuit court correctly stated in its order, more than 180 days had passed since the entry of the final judgment of conviction, leaving the court without jurisdiction to consider Smith's petition. As such, the circuit court had discretion to deny the petition for lack of jurisdiction.

         ¶5. Although the circuit court was without authority to hear Smith's out-of-time appeal, in the interest of justice and upon a finding of good cause, the rules allow this Court to suspend the requirements of Rule 4(h) and proceed with the appeal. M.R.A.P. 2(c). Good cause may be found where a defendant proves by a preponderance of evidence that he asked his attorney to appeal within the time prescribed by law and, through no fault of his own, his attorney failed to perfect the appeal. Havard v. State, 911 So.2d 991, 993 (¶10) (Miss. Ct. App. 2005). The burden of proof lies squarely upon the defendant to provide at least some evidence that he invoked his right to appeal, and that right was denied. Diggs v. State, 784 So.2d 955, 957 (¶8) (Miss. 2001).

         ¶6. Here, the record is completely devoid of any evidence to allow Smith's out-of-time appeal. Smith provided no affidavit, documentation, or testimony to the circuit court in his petition for an out-of-time appeal (other than his affidavit of indigency). There was no indication by counsel or by Smith after the jury rendered its verdict or during the sentencing hearing that Smith desired to appeal. While this Court may assume that a man sentenced to twenty-two years in prison would likely ...


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