Edmond v. State, No. 2007-CP-01163-SCT.

Decision Date31 July 2008
Docket NumberNo. 2007-CP-01163-SCT.
Citation991 So.2d 588
PartiesAlbert EDMOND v. STATE of Mississippi.
CourtMississippi Supreme Court

Albert Edmond, pro se.

Office of The Attorney General by Jane L. Mapp, attorney for appellee.

Before WALLER, P.J., EASLEY and GRAVES, JJ.

EASLEY, Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. In 1974, Albert Edmond was convicted of forcible rape in Hinds County, Mississippi, and sentenced to life imprisonment. This Court affirmed his conviction. Edmond v. State, 312 So.2d 702 (Miss. 1975). In 1982, Edmond was paroled. Shortly thereafter, Edmond had his parole revoked.

¶ 2. In 1999, Edmond filed a "Petition for Writ of Habeas Corpus" in the Circuit Court of Greene County. In his petition against the Mississippi Department of Corrections (MDOC) and the Mississippi Parole Board (MPB), Edmond asserted that his parole was unlawfully revoked in 1982. In December 1999, James W. Backstrom, a Greene County circuit court judge, issued an order which denied Edmond's petition for writ of habeas corpus. The trial judge found that Edmond, by his own admission and statements in the pleadings, violated the terms of his parole. Edmond appealed the denial of the petition for habeas corpus to this Court.

¶ 3. In 2001, this Court handed down its opinion in Edmond v. Mississippi Department of Corrections, 783 So.2d 675 (Miss. 2001). This Court reversed and remanded the trial court order which dismissed the petition for habeas corpus. Id. at 680. In its opinion, this Court remanded the case to the trial court "for an evidentiary hearing to determine whether laches should apply, to determine the terms and conditions of Edmond's parole revocation, and whether Edmond received his due process rights and a proper revocation procedure before his parole was revoked." Id.

¶ 4. After a transfer of venue from Greene County to Sunflower County, this Court appointed Judge Gray Evans as special judge in the case. On July 12, 2001, Judge Evans denied Edmond's petition for habeas corpus and dismissed the case with prejudice. The trial court held:

In accordance with Section 99-39-11 of the Mississippi Code, having examined the records, this Court finds no reason to conduct an evidentiary hearing in this matter. The institutional files of Petitioner clearly indicate that he is not entitled to the relief requested.

On June 16, 1982, Petitioner was granted parole to Bolivar County. Accompanying Petitioner's Certificate of Parole were the condition[s] of said parole, including number 5 which states, "I will live and remain at liberty without violating the law." Said conditions were signed under oath by Petitioner on June 16, 1982. On July 3, 1982, a warrant for Petitioner's arrest was issued by the City of Cleveland for the charge of Burglary of an Inhabited Dwelling. Petitioner appeared before a Justice Court Judge on July 9, 1982. The charge was reduced to Malicious Trespass and Petitioner was sentenced to six days in the County Jail.

On July 3, 1982, upon receipt of notice of Petitioner's arrest, a Warrant for Arrest of Paroled Prisoner was issued by the Department of Corrections. On July 14, 1982, Petitioner waived his right to a preliminary parole revocation hearing and on July 15, 1982, a Warrant for Retaking Parole Prisoner was issued by the Department of Corrections.

On July 22, 1982, a letter was issued to Petitioner stating that he would have a parole revocation hearing on August 2, 1982. Said hearing was conducted and the parole board revoked Petitioner's parole and set off reconsideration for a period of one year.

Having thoroughly reviewed the institutional and parole files of Petitioner, this Court hereby finds that Petitioner did in fact violate the terms of his parole by being convicted in the Justice Court of Bolivar County of Malicious Trespass. In addition, this Court finds that Petitioner received his due process rights and all proper revocation procedures were followed prior to his parole revocation. Finding that Petitioner is not entitled to the relief requested, this Court finds is (sic) unnecessary to address the doctrine of laches in this matter; however, in this Court's opinion, laches would also be a bar to this matter in that witnesses are no longer employees of the Department of Corrections or are deceased. Therefore, this Court hereby DENIES this petition and DISMISSES this cause with prejudice.

¶ 5. On January 23, 2006, Edmond filed a petition for writ of mandamus in the circuit court. In his petition, he asserted that he first learned of Judge Evans's July 12, 2001, order when this Court issued a January 4, 2006, order in cause number 2004-M-01190.1 Thereafter, on August 29, 2006, Edmond filed a motion for out-of-time appeal. On May 4, 2007, Judge Richard A. Smith denied Edmond's motion for out-of-time appeal, finding that Edmond's motion was barred by the 180-day limit set out in Mississippi Rule of Appellate Procedure.

DISCUSSION

¶ 6. Edmond raises four issues on appeal (1) whether the appellate court is mandated to grant him an out-of-time appeal; (2) whether the trial court erred in denying his habeas corpus petition without the mandated evidentiary hearing; (3) whether he was afforded due-process rights and a proper revocation procedure before his parole was revoked; and (4) whether the doctrine of laches should apply to his habeas corpus petition. We find that issue one, pertaining to the out-of-time appeal, is dispositive, and this Court need not address the other issues before it.

¶ 7. Edmond argues that the trial court erred by dismissing his out-of-time appeal. The trial court dismissed Edmond's claims pursuant to Mississippi Rule of Appellate Procedure 4(h). Edmond claims that, through no fault of his own, he was unable to timely file an appeal, therefore, this Court should grant his out-of-time appeal. In support of his assertion, Edmond contends that he did not receive notice of the July 12, 2001, judgment which dismissed his habeas corpus petition until January 2006. Edmond also contends that the trial court was without jurisdiction to re-open the case.

¶ 8. Mississippi Rule of Appellate Procedure 2(a)(1) provides for mandatory dismissal of an appeal "if the notice of appeal was not timely filed pursuant to Rules 4 or 5." M.R.A.P. 2(a)(1). Rule 4(a) provides the timeline for filing an appeal. Rule 4(a) states, in part, "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." M.R.A.P. 4(a). However, Rule 4(h) provides for a limited exception to Rule 4(a) by allowing a trial court to reopen the time period for an appeal. Rule 4(h) states:

The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

M.R.A.P. 4(h).

¶ 9. The trial court's order stated, in part:

11. Petitioner has alleged that he was not given notice of the entry of judgment filed in this matter by Judge Gray Evans on July 12, 2001 and that he should be granted an out of time appeal.

12. Although there is no proof that Petitioner was not provided a copy of the judgment in this matter, giving him every benefit of the doubt, it appears that Petitioner did in fact have notice of the entry of judgment no later then (sic) January 17, 2006, when he filed another Petition for Writ of Habeas Corpus with the Mississippi Supreme Court, in which he asked the Court to reverse the order of the Sunflower County Circuit Court, cause no. 2001-0309, on July 12, 2001.

13. If this Court calculates 180 days from January 17, 2006, it appears that in order to be eligible for an out of time appeal, Petitioner would had to have file his Motion no later than July 17, 2006. Petitioner's Motion was dated August 28, 2006 and was not filed with the Circuit Clerk's office until August 29, 2006.

Thereafter, the trial court ordered that Edmond's motion for out-of-time appeal was barred by the 180-day limitations period set forth in the appellate rules and denied the motion, dismissing the cause with prejudice.

¶ 10. In McGruder v. State, 886 So.2d 1, 2 (Miss.2003), this Court stated that "[w]hether a trial court has authority to remedy the failure to file timely a notice after the time set by the rules for filing a notice of appeal had expired is doubtful." Id. at 2 (citing Coleman v. State, 804 So.2d 1032, 1037 (Miss.2002)). In Deloach v. State, 890 So.2d 852 (Miss.2004) this Court held:

Whether a trial court has authority to remedy the failure to file timely a notice after the time set by the rules for filing a notice of appeal had expired is doubtful. Coleman v. State, 804 So.2d 1032, 1037 (Miss.2002). However, we may grant an out-of-time appeal "where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court." Jones v. State, 355 So.2d 89, 90 (Miss. 1978). We may suspend Rules 2 and 4 "when justice demands" to allow an out-of-time appeal in criminal cases. Fair v. State, 571 So.2d 965, 966 (Miss.1990).

890 So.2d at 854 (quoting McGruder v. State, 886 So.2d 1 (Miss.2003)).

¶ 11. The Court of Appeals also has decided numerous cases involving the application of Rule 4(h) where the appellant filed a notice of appeal more than 180 days after a final judgment. In Parker v. State, 921 So.2d 397, 398 (Miss.Ct.App.2006), the defendant filed an out-of-time appeal ten years after his conviction. Parker alleged that he...

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