Bennett v. State, 47700

• Decision Date: 08 April 1974
• Docket Number: No. 47700,47700
• Citation: 293 So.2d 1
• Parties: Isiah BENNETT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1

293 So.2d 1

Isiah BENNETT v. STATE of Mississippi.

No. 47700.

Supreme Court of Mississippi.

April 8, 1974.

Ben Owen, Columbus, for appellant.

A. F. Summer, Atty. Gen., by Timmie Hancock, Special Asst. Atty. Gen., Jackson, for appellee.

SUGG, Justice:

This case is before the Court on direct appeal by Bennett from a decision of the Circuit Court of Lowndes County denying his petition for writ of error coram nobis, and on cross-appeal by the State of Mississippi.

Bennett was convicted of murder on May 18, 1972, sentenced to serve a life term in the Mississippi State Penitentiary and transferred to the Penitentiary on June 9, 1972.

On August 16, 1972 Bennett filed an application with the Circuit Clerk of Lowndes County for a certified copy of all records on file with the clerk pertaining to his case. On the same day the clerk responded and furnished Bennett with the copies as requested. On September 11, 1972 Bennett filed an application for a 'transcript of this Hon. Court in its beginning to ending of trial process in case State Vs Isiah Bennett.' On September 11, 1972 the clerk acknowledged receipt of the request from Bennett and notified him that he was forwarding the request to the official court reporter. On September 20, 1972 a letter from the official court reporter was filed stating that a transcript had not been prepared because no appeal was taken in the case. The clerk wrote Bennett on September 20, 1972 that the court reporter's notes had not been transcribed and advised him that any further proceedings should be handled through his attorney and, if he had no attorney but desired to proceed further, the court would appointed an attorney for him. A motion sworn to on November 6, 1972 was filed by Bennett to proceed further, the court would appoint counsel to represent him. On November 17, 1972 the circuit judge appointed an attorney to represent Isiah Bennett. From the above chronology of events, it is apparent that each request by Bennett received prompt attention.

On December 6, 1972 Bennett filed a motion for leave to file application for writ of error coram nobis in the Circuit Court of Lowndes County. The motion was obviously prepared by Bennett or by another inmate for him. Bennett acknowledged in the motion that he had received copies of all records on file with the clerk and alleged that the notes of the trial were not transcribed. Bennett further alleged that failure to transcribe the notes taken at his trial deprived him of liberty without due process of law, denied equal protection of the law and abridged his privileges and immunities as a citizen of the United States.

The cause came on for hearing on May 1, 1973 when counsel for Bennett made the following motion:

BY MR. OWEN: Comes now the defendant, Isiah Bennett, and moves the Court to amend his petition for Writ of Error Coram Nobis to include the following relief: that not only shall a copy of the transcript of the Court Reporter's notes be sought, but also the perfecting of an appeal in forma pauperis.

Bennett first contends that the affidavit filed on August 16, 1972 was sufficient to perfect an appeal to this Court under Miss.Code Ann. § 99-35-105 (1972) which provides in part as follows:

If the appellant shall make affidavit that he is unable to give an appeal-bond, and unable to deposit a sufficient sum of money to cover costs, he shall have an appeal without bond or deposit for costs; and his appeal shall stay the judgment appealed from.

The affidavit was filed within the 90 days allowed for appeals to the Supreme Court under Miss.Code Ann. § 11-51-5 (1972). ¹ Although Bennett's affidavit was filed within the 90 days allowed for appeals, it was limited to a request for a certified copy of records in the hands of the circuit clerk.

After the hearing on his petition for writ of error coram nobis Bennett filed a petition for writ of certiorari in this Court, and on September 17, 1973 the writ was denied without opinion (Isiah Bennett v. State of Mississippi, Misc. #380). In his petition for writ of certiorari Bennett alleged: 'That while he was confined in the penitentiary, the time for appeal lapsed, but justice demands in this case that such an appeal be granted.' Bennett now takes a different position from the statement contained in his petition for writ of certiorari and argues that his affidavit was sufficient to perfect his appeal.

Appeals are taken by filing a petition with the clerk of the court where the judgment was rendered and such petition need only state the rendition of the judgment or decree to be appealed from, and ask for an appeal. Miss.Code Ann. §§ 11-51-13, 11-51-15 (1972). However, under Miss.Code Ann. § 11-51-25 (1972) a written petition for an appeal is not necessary for its validity if a transcript of the record of the case is filed in the office of the Clerk of the Supreme Court.

Bennett failed to satisfy the statutory requirements necessary to perfect an appeal to this Court. We have held that since the right of appeal is statutory, an appeal must be perfected in the manner and within the time prescribed by statute. Cooper v. State, 175 Miss. 718, 168 So. 53 (1936). The affidavit of August 16, 1972 was not sufficient to confer jurisdiction on this Court and the denial of the writ of certiorari on September 17, 1973 is dispositive of this issue. The facts in this case are not sufficient for this Court to grant Bennett an out of time appeal. State v. Ridinger, 279 So.2d 618 (Miss.1973) and cases cited therein.

Bennett also contends that he should be furnished a copy of the court reporter's stenographic notes taken at the trial for use on appeal. Miss.Code Ann. § 9-13-33 (1972) provides that in all cases in which the trial was noted by the official court reporter, any person desiring to appeal the case shall notify the court reporter in writing within 10 days after adjournment of court of the fact that a copy of the notes is desired. We have held that notice to the court reporter must be given within the time prescribed by statute, and in the absence of timely notice the notes, even if transcribed, may not be considered on appeal. McGee v. State, 203 Miss. 609, 35 So.2d 628 (1948); Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787 (1933). We decline to overrule our cases so holding. Bennett did not give the notice required by statute and therefore is not entitled to have the notes transcribed for the purpose of appeal.

He next argues that the lower court denied him his constitutional rights by failing to inform him that he could appeal his conviction and that counsel could be appointed for that purpose if he were indigent.

At the hearing Bennett claimed that, following his conviction, he did not know that the court would appoint an attorney to prosecute his appeal if he were indigent, but learned of this fact after he had been in the penitentiary about two months. He stated that he desired to appeal his conviction. There was testimony by Bennett's wife and two of his friends that they attempted to retain an attorney to handle the appeal but were unsuccessful in their efforts due to a lack of funds. Bennett denied having discussed the possibility of an appeal with his retained trial counsel.

When the state produced the trial counsel and inquired whether he and Bennett had ever discussed an appeal, an objection to testimony by trial counsel relating to any discussion between him and Bennett about an appeal was sustained because of the attorney-client privilege.

The United States Supreme Court has held that an indigent defendant has the right to appointed counsel on appeal, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), reh. den. 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200, but it has never spoken on the specific issue here presented: does there exist a constitutional obligation to inform a convicted defendant who was represented by retained counsel at his trial that he may appeal and may have counsel appointed for that purpose if he is indigent?

Conflicting viewpoints on this question have arisen in other jurisdictions. The leading case in favor of imposing a constitutional obligation upon the curts to inform a convicted defendant of his rights on appeal is United States ex. rel. Smith v. McMann, 417 F.2d 648 (2nd Cir. 1969). In that case the United States Court of Appeals for the Second Circuit extended the philosophy of Douglas in the following language:

We think the only practical, logical and fair interpretation to be given to Douglas v. California is that it imposes upon the state a duty to warn every person convicted of crime of his right to appeal and his right to prosecute his appeal without expense to him by counsel appointed by the state, if he is indigent. The right to appeal at the expense of the state is mere illusion if the convicted indigent defendant does not know such a right exists. And the one way to make sure that he does know is to tell him so. . . . (417 F.2d at 654).

Similar results have been reached in: Peterson v. State, 54 Wis.2d 370, 195 N.W.2d 837 (1972); United States ex rel. Singleton v. Woods, 440 F.2d 835 (7th Cir. 1971); Woodall v. Neil, 444 F.2d...