Benbow v. State, 91-KP-0061

• Decision Date: 18 February 1993
• Docket Number: No. 91-KP-0061,91-KP-0061
• Citation: 614 So.2d 398
• Parties: Jerome BENBOW v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 398

614 So.2d 398

Jerome BENBOW v. STATE of Mississippi.

No. 91-KP-0061.

Supreme Court of Mississippi.

Feb. 18, 1993.

Jerome Benbow, pro se.

Michael C. Moore, Atty. Gen., Ellen Y. Dale, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

McRAE, Justice, for the Court:

Jerome Benbow entered a plea of guilty to charges of aggravated assault on a law officer on May 4, 1989, in the Lafayette County Circuit Court and was sentenced to twenty (20) years in custody of the Mississippi Department of Corrections, with five (5) years suspended. Suspending Miss.Sup.Ct. Rule 4, pursuant to Miss.Sup.Ct.R. 2(c), we grant this appeal, which was filed thirty-four (34) days after Benbow's sentencing. Finding that the circuit court erred in refusing to allow Benbow to withdraw his guilty plea and order a trial on the grounds that Benbow had no counsel and had not knowingly and intelligently waived his right to counsel, we reverse and remand for proceedings consistent with this opinion.

I.

Jerome Benbow shot his wife, a campus traffic officer, while she was on duty at the University of Mississippi. Benbow claimed throughout the hearings that he "blacked out" and did not remember the shooting. He attributed this to a blow on the head that he had received earlier in the day when he was assaulted by two men. Benbow was indicted for aggravated assault on a police officer in violation of Miss.Code Ann.Sec. 97-3-7(2)(b) (Supp.1991), which provides, in pertinent part:

A person is guilty of aggravated assault if he ...

(b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one year or in the penitentiary for not more that twenty years. Provided, however, a person convicted of aggravated assault upon a law enforcement officer or fireman while such law enforcement officer of fireman is acting within the scope of his duty and office shall be punished by a fine of not more than five thousand dollars ($5,000.00) or by imprisonment for not more than thirty years, or both.

Benbow's wife, a witness at the trial, however, was never asked about her duties as a University of Mississippi traffic officer. There was no attempt to attack the indictment as to whether a University traffic officer is a "law enforcement officer" within the meaning of the aggravated assault statute. The record indicates that the public defender knew that the victim was a University traffic officer, but just did not think to check out her duties to see if she was the type of "law enforcement officer" intended to fall within the statute.

Public Defender Omar Craig was appointed counsel. Legal intern David Minyard, following a court order which permitted him limited practice under Craig's supervision, appeared with Benbow when he entered the guilty plea on May 4, 1989. Benbow signed a petition to plead guilty and Minyard erroneously stated that the minimum sentence was thirty years. Minyard testified that he had thought that thirty years was the minimum sentence and communicated that to Benbow. Circuit Judge Kenneth Coleman did not advise Benbow prior to the plea as to the minimum penalty. Craig testified that he did not talk to Benbow prior to the plea and was not in the courtroom when he pled guilty and was sentenced.

On August 8, 1989, Benbow collaterally attacked his plea and sentence, and following an evidentiary hearing, his motion for post-conviction relief/request to withdraw guilty plea was denied. The state has since filed a motion to dismiss the appeal as being untimely filed.

II.

We reject the State's argument that we do not have jurisdiction to consider Benbow's appeal because it was not filed until thirty-four days after sentencing. To deny the motion, we must suspend the 30-day filing rule provided for in Miss.Sup.Ct. Rule 4 as well Miss.Sup.Ct. Rule 2(a)(1), which mandates dismissal if notice is untimely. In this case, the notice was due December 31, 1990, and was not stamped "filed" by the clerk until January 4, 1991, four days late. Benbow argues that he delivered his notice of appeal to the prison authorities for mailing on December 29, 1990. He further asserts that he cannot be faulted because it did not arrive in the clerks office for filing until January 4, 1992.

In civil cases, we have refused to accept any excuse for not filing a notice in a timely fashion. See Tandy Electronics, Inc. v. Fletcher, 554 So.2d 308 (Miss.1989). Whether, in criminal cases involving an incarcerated pro se litigant, the timely delivery to appropriate prison authorities is considered sufficient is a question of first impression in this State. Miss.Sup.Ct. Rule 4, in relevant part, provides that:

(a) Appeal and Cross Appeals in Civil and Criminal Cases. In a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from a trial court to this Court the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from. If a notice of appeal is mistakenly filed in this Court, the clerk of this Court shall note on it the date on which it was received and transmit it to the clerk of the trial court and it shall be deemed filed in the trial court on the date so noted.

(g) Extensions of time. The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule. Any such motion which is filed before expiration of the prescribed time may be granted for good cause and may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribe time shall be given to other parties, and the motion shall be granted only upon a showing of excusable neglect. No such extension shall exceed 30 days past such prescribed time or 10 days for the date of entry of the order granting the motion, whichever occurs later.

Miss.Sup.Ct. Rule 2(a)(1) mandates dismissal if notice is untimely.

(a)(1) Mandatory Dismissal. An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5.

(c) Suspension of Rules. In the interest of expediting decision, or for other good cause shown, this Court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, in civil cases this Court will not extend the time for taking an appeal as provided in Rules 4 or 5.

Rules 2(c) and 4(g), read in conjunction with Miss.Code Ann. 99-39-25(1) (Supp.1991) provides this Court with authority to suspend the rule in post-conviction relief appeals, as in any other criminal appeal, and to allow an appeal to proceed despite apparently untimely notice.

The Comment to Miss. Supreme Ct. R. 4 notes that "a party must do all it could reasonably be expected to do to perfect the appeal in a timely fashion." We find that Benbow did all he could do under the circumstances. The Comment to Rule 4 also notes that upon the filing of an "excusable neglect" motion to extend the time for filing notice, courts may allow out of time appeal where, for example, "a timely mailed notice was late because of unanticipated and uncontrollable delays in the mail." Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). The U.S. Supreme Court followed Fallen in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), a case virtually indistinguishable from the case sub judice. In Houston v. Lack, the Supreme Court held that under a similarly worded Federal Rule of Appellate Procedure, a prisoner's pro se notice of appeal is deemed filed with timely delivery to proper prison authorities. The only difference between the Fed.R.App.P. 4 and the Miss.Sup.Ct.R. 4 is that Fed.R.App.P. 4(a)(1) applies to civil appeals, but habeas corpus appeals in federal court are civil matters. The threshold question is when the notice of appeal has been "filed" within the meaning of the rule; it matters not that Benbow is pursuing a criminal appeal and Houston was a civil appeal. The language setting the time limit for each is indistinguishable--Benbow had 30 days in which to have his notice "filed with the clerk of the trial court." Miss.Sup.Ct.R. 4(a). Houston had 30 days to have his notice "filed with the clerk of the district court." Fed.R.App.P. 4(a)(1). The Houston Court stated:

[P]etitioner thus filed his notice within the requisite 30-day period when, three days before the deadline, he delivered the notice to prison authorities for forwarding to the District Court. The situation of prisoners seeking to appeal without aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline.... Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped "filed" on time.... Unskilled in the law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access....

... There is ... no dispute here that notice must be directed to the clerk of the district [or trial] court--delivery of a notice of appeal to prison authorities would not under any theory constitute a "filing"...