Jones v. State
| Docket Number: | 2009-CP-01890-COA Linked Case(s): 2009-CP-01890-COA ; 2009-CT-01890-SCT ; 2009-CT-01890-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-24-2010 Opinion Author: Griffis, J. Holding: Reversed and remanded. |
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| Additional Case Information: |
Topic: Post-conviction relief - Out of time appeal - Section 99-39-5(1)(i) - Attorney's obligation - M.R.A.P. 6(b)(1) Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Barnes, Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): Maxwell, J. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 11-13-2009 Appealed from: Lafayette County Circuit Court Judge: Andrew K. Howorth Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: L08-410 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Gerald Jones |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS | ||
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 - Out of time appeal - Section 99-39-5(1)(i) - Attorney's obligation - M.R.A.P. 6(b)(1) |
| Summary of the Facts: | In 2003, Gerald Jones was convicted of two counts of sexual battery and was sentenced to two concurrent twenty-five-year terms. Jones claims that he informed his court-appointed attorney immediately following the verdict that he wanted to appeal his conviction and sentence to the Mississippi Supreme Court. However, a notice of appeal was not filed within thirty days as required by M.R.A.P. 4(e). Jones filed a pro se motion for appointment of new counsel to file an appeal. Two years later, the circuit court entered an order that granted the motion and appointed the same attorney to represent Jones for appeal purposes. After the attorney filed a notice of appeal, Jones was granted permission from the circuit court to proceed with his appeal in forma pauperis. The Court of Appeals, on its own motion, dismissed Jones’s appeal as untimely filed. Two years later, Jones, acting pro se again, filed a motion for post-conviction collateral relief asking for permission to file an out-of-time appeal. The court denied the motion, and Jones appeals. |
| Summary of Opinion Analysis: | Section 99-39-5(1)(i) allows a prisoner to file a motion for post-conviction collateral relief on the basis that he is entitled to an out-of-time appeal. To prove his right to an out-of-time appeal, Jones must show by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal. He must also show that the attorney failed to perfect the appeal and that such failure was through no fault of his own. An evidentiary hearing is warranted on the issue of whether an appeal was requested when the appellant and the attorney give conflicting statements on the issue. Furthermore, a hearing is also warranted when the record contains no response from the attorney. In this case, the attorney’s letter to Jones stated that his representation was complete upon Jones’s conviction. This was not a correct statement of the law and the attorney’s obligations to this client, Jones. M.R.A.P. 6(b)(1) requires appointed trial counsel to continue as defendant's counsel on appeal unless relieved by order of the trial court, or, if the appeal has been perfected, by order of the Supreme Court or the Court of Appeals. The record contains no order by the circuit court relieving the attorney of his duty to represent Jones on appeal. Justice requires Jones receive a hearing on whether he was entitled to be granted permission for an out-of-time appeal. On remand, the circuit court may appoint counsel to represent Jones and then hold an evidentiary hearing to determine whether Jones should have been granted permission to file an out-of-time appeal. If permission is appropriately granted, the appeal may proceed. If permission is not granted, Jones would be entitled to appeal this determination on the record of the evidentiary hearing. |
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