Arnold v. State
| Docket Number: | 2011-CA-01119-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-24-2012 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Timeliness of appeal - M.R.A.P. 4(a) - M.R.A.P. 4(h) - Trial in absentia Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Carlton, Maxwell, Russell and Fair, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 05-12-2011 Appealed from: Scott County Circuit Court Judge: Marcus D. Gordon Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: 2009-CR-016-SC-G |
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| Party Name: | Attorney Name: | |||
| Appellant: | Derrick Anthony Arnold a/k/a Derrick Arnold |
P. SHAWN HARRIS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Timeliness of appeal - M.R.A.P. 4(a) - M.R.A.P. 4(h) - Trial in absentia |
| Summary of the Facts: | Derrick Arnold was indicted, as a habitual offender, on two counts of the sale of marijuana. At trial, Arnold was absent. Trial resumed the following day, and Arnold was still absent. A jury convicted Arnold on Count I of his indictment, and he was sentenced to serve six years. Arnold was not located until almost a year later. He hired an attorney several months later and filed a motion for an out-of-time appeal which the court denied. Arnold appeals. |
| Summary of Opinion Analysis: | M.R.A.P. 4(a) provides that a notice of appeal must be filed within thirty days after the date of entry of the judgment or order appealed from. Arnold does not dispute that he is well overdue on filing a notice of appeal under Rule 4(a). There is also no dispute that Arnold was well past even the one-hundred-eighty-day period allowed in M.R.A.P. 4(h). However, he argues that the circuit court had discretion to allow him to file an out-of-time appeal by extending the period found in Rule 4(a) and Rule 4(h). Arnold submits that it was car trouble that kept him from attending the first day of trial and fear of arrest that prevented him from coming the next day. He also argues that it was a violation of his constitutional rights to continue to try him without making more of an effort to determine if he was voluntarily absent from his trial. Under section 99-19-7, the circuit court has the discretion to try a defendant in his absence if he appears to have voluntarily waived his right to be present for his trial by resisting, fleeing, refusing to be present, or is in “default for nonappearance[.]” It is clear from the record in this case that Arnold voluntarily absented himself from his trial. Arnold knew when and where his trial was to be held. He knew that he had been convicted. He also stated the reason he did not come to trial was because he had car trouble on the first day of his trial, yet when further questioned, Arnold admitted his wife had a car and his family often drove him to work. The record is void of any evidence that Arnold even attempted to call his attorney or the courthouse by phone to inform them of his car trouble on the morning of trial. The facts show absolutely no effort on Arnold’s part to perfect an appeal timely. |
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