Lindsey v. State
| Docket Number: | 2003-KA-00331-SCT Linked Case(s): 2003-KA-00331-SCT ; 2003-KA-00331-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-17-2005 Opinion Author: Waller, P.J. Holding: SUPPLEMENTAL BRIEFING ORDERED |
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| Additional Case Information: |
Topic: Burglary of business - Turner procedure - Appeal without merit - M.R.A.P. 28(a) Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: Graves, J. Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-12-2003 Appealed from: Scott County Circuit Court Judge: Marcus D. Gordon District Attorney: Mark Sheldon Duncan Case Number: 2005-CR-006-SC |
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| Party Name: | Attorney Name: | |||
| Appellant: | Randy Cal Lindsey |
EDMUND J. PHILLIPS, JR.
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART |
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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: | Burglary of business - Turner procedure - Appeal without merit - M.R.A.P. 28(a) |
| Summary of the Facts: | Randy Lindsey was convicted of burglary of a business and sentenced as a habitual offender to seven years without parole. He appeals. |
| Summary of Opinion Analysis: | Citing to Turner v. State, 818 So. 2d 1186, 1189 (Miss. 2001), Lindsey’s appellate attorney filed a brief arguing that Lindsey’s appeal is without merit. Lindsey has filed a pro se brief, arguing that he has unconstitutionally been denied assistance of counsel at the appellate stage; the State failed to prove beyond a reasonable doubt Lindsey committed the crime of burglary; the trial court committed various errors in denying a continuance as well as denying him a trial transcript; he received ineffective assistance of counsel at trial; and the Mississippi Supreme Court erred by not entertaining his claim. Lindsey argues that he has been denied his constitutional right to counsel as a result of his attorney’s failure to properly represent him before the Supreme Court. The State acknowledges the legitimacy of Lindsey’s argument. The procedure approved by the Court in Turner requires appellate counsel to determine that the defendant is unlikely to prevail on appeal; file a brief indicating that he scoured the record thoroughly and refer to anything in the record that might arguably support the appeal; and advise client of his right to file a pro se supplemental brief. At this point, the appellate court shall then make its own independent review of the record, in the manner followed in all other cases. Today, Turner is overruled in part to rectify the constitutional problems with the procedure governing appeals by indigent criminal defendants. The following procedure will now govern cases where appellate counsel represents an indigent criminal defendant and does not believe his or her client’s case presents any arguable issues on appeal: counsel must file and serve a brief in compliance with M.R.A.P. 28(a)(1)-(4),(7); as a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining the reason for the arrest and the circumstances surrounding arrest, any possible violations of the client’s right to counsel, the entire trial transcript, all rulings of the trial court, possible prosecutorial misconduct, all jury instructions, all exhibits whether admitted into evidence or not, and possible misapplication of the law in sentencing; counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief; should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal; and once briefing is complete, the appellate court must consider the case on its merits and render a decision. Because Lindsey’s attorney has submitted a brief simply concluding that his client’s claim has no merit, he is ordered to submit a supplemental brief in compliance with this opinion. |
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