Barnett v. State, 57225
| Decision Date | 05 November 1986 |
| Docket Number | No. 57225,57225 |
| Citation | 497 So.2d 443 |
| Parties | Freddie BARNETT v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Freddie Barnett, pro se.
Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, C.J., and SULLIVAN and GRIFFIN, JJ.
In June of 1984, Freddie Barnett was convicted of aggravated assault and sentenced to a term of twenty (20) years. Some sixteen (16) months later, he filed in the Circuit Court of Warren County a motion for an out-of-time appeal. The circuit court denied the motion without conducting an evidentiary hearing. From that denial, Barnett appeals. Because the lower court erred in finding Barnett's claim to be manifestly without merit, we reverse and remand for an evidentiary hearing.
In his motion for an out-of-time appeal, Barnett alleged the following: He was convicted of aggravated assault on June 22, 1984, and after the verdict he told his court-appointed attorney that he wanted to appeal the conviction. In April of 1985, ten (10) months after his conviction, he was transported from the county jail to the state penitentiary. He then filed in the Circuit Court of Warren County a motion to be transferred back to the county jail pending appeal. The district attorney's office filed a motion to dismiss, claiming that no appeal was pending. Subsequently, the circuit court granted the motion to dismiss. According to Barnett's allegations, he believed his appeal was pending until he received the district attorney's motion to dismiss his motion to be transferred to the county jail pending appeal.
Attached to the motion for out-of-time appeal were three (3) affidavits: Freddie Barnett, in his affidavit, stated that he told his attorney of his desire to appeal, and that his attorney informed him the case was being appealed. Gladys Barnett (Freddie's mother), in her affidavit stated that her son's attorney told her the case was being appealed. She further stated that her son called her from the state penitentiary, told her that his case was not being appealed, and asked her to call the attorney and find out what happened. She further stated that when she called the attorney, he said that Freddie "should have not done what he did and when he [got] out maybe he would do better." Floree Fletcher, in her affidavit, stated that she drove her Aunt Gladys to different people's houses trying to get Freddie's appeal bond signed.
Finding the motion for out-of-time appeal to be manifestly without merit, the trial court denied it without conducting an evidentiary hearing. In doing so the trial court erred. If Barnett's allegations are true, then he has, through no fault of his own, been denied his right to appeal. Wilson v. State, 426 So.2d 792 (Miss.1983); Jones...
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