Alison v. State

• Decision Date: 06 September 2016
• Docket Number: NO. 2015-KM-01119-COA,2015-KM-01119-COA
• Citation: 200 So.3d 469
• Court: Mississippi Court of Appeals
• Parties: Stefan Alison, Appellant v. State of Mississippi, Appellee

200 So.3d 469

Stefan Alison, Appellant

v.State of Mississippi, Appellee

NO. 2015-KM-01119-COA

Court of Appeals of Mississippi.

September 6, 2016

JIMMY D. MCGUIRE, FOR APPELLANT.

OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, FOR APPELLEE.

BEFORE GRIFFIS, P.J., CARLTON AND FAIR, JJ.

CARLTON

, J., FOR THE COURT:

¶ 1. The Hancock County Justice Court found Stefan Alison guilty of simple assault and trespass and sentenced Alison to pay a $400 fine, plus assessments of $157.75, for the simple-assault conviction, and a $25 fine, plus assessments of $157.75, for the trespassing conviction. The justice court also set an appeal bond of $500 for each conviction.

¶ 2. Alison appealed his conviction and sentence to the Hancock County Circuit Court, which ultimately dismissed his appeal. On his appeal to this Court, Alison argues that the circuit court erred in dismissing his appeal based upon an alleged failure to comply with a technicality in Uniform Circuit and County Court Rule 12.02

. Finding error in the trial court's judgment, we reverse and remand this case for further proceedings consistent with this opinion.

FACTS

¶ 3. On September 23, 2014, Alison was convicted of simple assault and trespass in the Hancock County Justice Court. The justice court sentenced Alison to pay: a $400 fine plus assessments of $157.75 on the simple-assault conviction, and a $25 fine plus assessments of $157.75 on the trespassing conviction. The justice court also set an appeal bond of $500 for each conviction.

¶ 4. Alison appealed his conviction and sentence to the Hancock County Circuit Court on October 3, 2014. The record reflects that when Alison filed his appeal, he paid the circuit clerk with a check in the amount of $109. The record also shows that on October 3, 2014, Alison filed a single bond payment of $1,000 with the circuit clerk. The bond language stated that Alison, as principal, and Donald K. Thomas, as bondsman surety, “agree to pay the State of Mississippi $1,000, unless [Alison] shall appear before the circuit court.” Alison also filed additional filing fees with the clerk's office. The circuit clerk recorded Alison's bond filing as simply an “appeal” bond.

¶ 5. On June 4, 2015, the prosecutor filed a motion to dismiss Alison's appeal based on Alison's failure to file a cost bond as required by Uniform Rule of Circuit and County Court 12.02. Rule 12.02(a)(1)

provides:

Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal, and both a cost bond and an appearance bond (or cash deposit) as provided herein within 30 days of such judgment with the clerk of the circuit court having jurisdiction. This written notice of appeal and posting of the cost bond and the appearance bond or cash deposit perfects the appeal. The failure to post any bond or cash deposit required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs.

(Emphasis added). The prosecutor argued that since Alison filed only what appears to be an appearance bond, and failed to file the additional requisite cost bond, the appeal has not been perfected pursuant to Rule 12.02(a)(1)

and should be dismissed with prejudice.

¶ 6. At the June 12, 2015 hearing on the motion to dismiss, the circuit court heard testimony from the justice-court judge who presided over Alison's trial. The justice-court judge testified: “I've always included the appeal bond or the appearance bond and the cost included in one [bond].” At the hearing, the prosecutor also admitted: “[W]e will accept it's been common practice for one appeal bond to have been filed[,]” and that “we always did just one appeal bond.” The prosecutor, however, explained that the prior common practice “does not excuse the requirement that [a defendant file] separate appeal bonds.” The circuit court also recognized that filing one single appeal-bond payment, instead of two separate bond payments, “is the common practice in this county, [but] it doesn't appear to be in compliance with [Rule] 12.02

.”

¶ 7. During the hearing, the circuit court acknowledged that in Ray v. State , 124 So.3d 80, 83 (¶ 12) (Miss.Ct.App.2013)

, this Court explained that the difference in a cost bond and an appearance bond “is material.” Relying on Ray

, the circuit court determined:

The rule requires two separate bonds or cash deposits that serve two distinct purposes. The dismissal is proper because [in Ray ,

] Ray filed one sheet of paper versus two—not because Ray filed one sheet of paper ... but because Ray only secured the payment of costs without separately securing his appearance. Because he did not file both bonds, his appeal was not perfected. That's under Rule 12.02(A)(1).

The circuit court also explained that “in the Ray

decision[,] the Court of Appeals states that Rule 12.02 makes it plain that it is the appellant's filing of the written notice and posting of both bonds that perfects the appeal, not the acceptance by the circuit clerk.”¹

¶ 8. On June 12, 2015, the circuit court entered an order dismissing Alison's appeal. In its order, the circuit court explained:

The [c]ourt finds the case of Ray v. State , 124 So.3d 80 (Miss.Ct.App.2013)

[,] to be dispositive on the issues and this [c]ourt finds that the Defendant failed to comply with ... Uniform Rule[ ] of Circuit and County Court 12.02 when filing his appeal with the [c]ircuit [c]ourt by not filing the required bonds simultaneous with the filing of his notice of appeal. Therefore [Alison] failed to perfect his appeal within 30 days[.]

The circuit court dismissed Alison's appeal with prejudice, and ordered the matter remanded to justice court “for execution of its sentence.”

¶ 9. Alison filed a motion for reconsideration, which the circuit court denied.

STANDARD OF REVIEW

¶ 10. On appeal, this Court applies a de novo standard when reviewing a trial court's grant of a motion to dismiss. Ray , 124 So.3d at 81 (¶ 4)

. Additionally, we recognize that “whether a court obtained appellate jurisdiction is a question of law,” which we review de novo. Id. (citing Reeves v. City of Crystal Springs , 54 So.3d 322, 324 (¶ 6) (Miss.Ct.App.2011) ); see also

Parks v. State , 194 So.3d 179, 180 (¶ 4) (Miss.Ct.App.2015).

DISCUSSION

¶ 11. Alison argues that the circuit court erred in dismissing his appeal. He asserts that the record shows that standard practice and procedure in Hancock County allowed a defendant to submit only a single “appeal bond” with his notice of appeal. Alison submits that the abstracts of the justice court's judgment fail to reflect any “appearance bond” or “cost bond” distinction; the judgment simply lists two “appeal bonds” of $500 each. Alison argues that the circuit court should have allowed him the opportunity to amend the bond submitted with the notice of appeal and correct any deficiencies, and that the failure to do so constitutes a violation of his due-process rights.

¶ 12. The State argues that the circuit court properly dismissed Alison's appeal. The State cites to Riley v. Town of Lambert , 856 So.2d 721, 723 (¶¶ 9–10) (Miss.Ct.App.2003)

, and submits that if a defendant fails to follow the requirements of Rule 12.02, the trial court must dismiss the appeal.

¶ 13. The record and facts of this case reflect that Alison's posted bond covered both the appeal costs and the appearance bond. In so finding, we recognize that “[p]erfecting an appeal from a justice-court criminal conviction requires filing a notice of appeal and two bonds[:] (1) a ‘cost bond’ to secure estimate costs, and (2) an ‘appearance bond’ conditioned on the defendant's appearance pending the appeal's conclusion.” Ray , 124 So.3d at 81 (¶ 1)

.² Uniform Rule of Circuit and County Court 12.02(B)(1) provides that an appearance bond is “conditioned on [the defendant's] appearance before the county or circuit court[.]” The rule further clarifies that “[t]he amount of such cash deposit or appearance bond shall be determined by the judge of the lower court.” Additionally, “[i]f the defendant fails to appear at the time and place set by the court, the court may dismiss the appeal with prejudice and with costs and order forfeiture of the appearance bond or cash deposit.” A cost bond, however, serves as a payment “for all estimated court costs, incurred both in the appellate and lower courts[.]” Like the appearance bond, the amount of the cost bond “shall be determined by the judge of the lower court payable to the state[.]” “Because of the distinct purposes for each bond, failure to file either is grounds for dismissal.” Ray , 124 So.3d at 81 (¶ 1) ; see URCCC 12.02(A)(1).

¶ 14. In Ray

, this Court examined “whether a single bond—or single cash deposit—satisfied both [appearance-bond and cost-bond requirements.]” Ray , 124 So.3d at 82 (¶ 6). The defendant, Ray, filed a notice of appeal of his conviction in justice court within thirty days, but filed only one cash deposit of $138.50, which he labeled an “appeal bond.” Id. at (¶ 7). The county court dismissed Ray's appeal after finding that although “Ray had filed a written notice of appeal and cost bond, which Ray had labeled ‘appeal bond,’ Ray failed to perfect his appeal under [Rule] 12.02 by also filing the required appearance bond.” Id. at 81 (¶ 3). On appeal, the circuit court affirmed, agreeing that Ray's “appeal bond” amounted to only a cost bond. Id.

¶ 15. This Court also affirmed the dismissal after determining that Ray's bond for $138.50 was a cost bond “tendered ... as the costs of perfecting his appeal.” The Ray

court explained that “under Rule 12.02, Ray also had to secure his appearance through a separate appearance bond (or cash deposit), which he did not do.” Id. at 82–83 (¶ 11). This Court held that “dismissal was proper not simply because Ray filed one sheet of paper versus two, but because Ray...