1999 Buick Century v. State, et al.
| Docket Number: | 2006-CA-02046-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-02-2007 Opinion Author: GRIFFIS, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Forfeiture - Right to appeal - M.R.C.P. 52(b) - M.R.C.P. 56 - Sufficiency of petition Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - OTHER |
|
| Trial Court: |
Date of Trial Judgment: 11-16-2006 Appealed from: WALTHALL COUNTY CIRCUIT COURT Judge: David H. Strong Disposition: MOTION FOR SUMMARY JUDGMENT IN FAVOR OF THE STATE, DISPUTED PROPERTY FORFEITED. Case Number: 2006-121-S |
|
| Party Name: | Attorney Name: | |||
| Appellant: | 1999 BUICK CENTURY, VIN #2G4W552M9X1530091 |
VANESSA J. JONES |
||
| Appellee: | STATE OF MISSISSIPPI AND/OR TYLERTOWN POLICE DEPARTMENT AND MISSISSIPPI BUREAU OF NARCOTICS | THOMAS P. WELCH, JR. |
|
|
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. |
|
| Topic: | Forfeiture - Right to appeal - M.R.C.P. 52(b) - M.R.C.P. 56 - Sufficiency of petition |
| Summary of the Facts: | After Smith was arrested for the sale of crack cocaine, he received a notice of intention to forfeit seized property, a 1999 Buick Century. Smith’s attorney filed a petition to recover seized property and contest forfeiture. The petition was signed by Smith’s attorney but not by Smith. The State filed a motion for summary judgment, claiming that the petition was insufficient because Smith had not signed the petition as required by statute. Smith’s attorney filed an amended petition which Smith had signed. The court granted the motion for summary judgment, and Smith appeals. |
| Summary of Opinion Analysis: | The State argues that, pursuant to M.R.C.P. 52(b), Smith waived his right to appeal when he failed to file a motion to reconsider after entry of the summary judgment. However, Rule 52 applies only to decisions made after some proceeding in which contested facts need to be evaluated. It does not apply to a summary judgment. After the entry of Rule 56 summary judgment which decides all issues between all parties involved, the party seeking to appeal need only file a notice of appeal within the appropriate time to preserve his appeal. Smith argues that a hearing should have been granted, and the State should have been required to prove that the property was subject to forfeiture. A petition signed only by the attorney and not the claimant is statutorily insufficient. While Smith acknowledges in his brief that his petition was deficient, he argues that filing an amended answer after the thirty days passed cured the deficiency. Where a petition to contest forfeiture is statutorily insufficient, a hearing is not needed since the petition should have been struck. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
