Harvey v. State, 45145
| Citation | 218 So.2d 9 |
| Decision Date | 27 January 1969 |
| Docket Number | No. 45145,45145 |
| Parties | Jimmy HARVEY v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
William E. Miller, II, Reuben Anderson, Jackson, for appellant.
Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.
This is an appeal from an order of the Circuit Court of Rankin County, Mississippi, overruling a motion to reinstate an appeal to that court from the justice of the peace court. The question for our decision is whether the judge of the circuit court abused his discretion in refusing to reinstate the appeal. The record contains nothing upon which to base a finding of abuse of discretion. The case is affirmed.
Jimmy Harvey was charged in the justice of the peace court with driving an automobile while under the influence of intoxicating beverages. Upon a plea of not guilty he was tried, convicted, and fined; and this appeal was prosecuted. Upon the return day, July 10, 1967, neither the appellant nor his attorney appeared in the circuit court and the appeal was dismissed and a writ of procedendo was issued. On the following day, July 11, attorneys for appellant filed an unsworn motion to reinstate the appeal and stated therein that at the time of the trial in the justice of the peace court appellant was represented by an attorney who is no longer connected with the case and that the principal secretary in the law office representing appellant was on vacation and no one informed appellant's attorney that the case was scheduled to be called on July 10. It also stated that on the afternoon of the 10th, appellant called the law officer representing him and it was then determined that the case was to be called on July 10, 1967, and that no prejudice would be caused by reinstating appeal since criminal trials were not scheduled until the week of July 27. The State did not file any response to the motion, and no proof was offered in support thereof. On July 20, 1967, the motion to reinstate was overruled and this appeal was prosecuted.
The record is devoid of any proof in support of the allegations of the motion to reinstate. Assuming, without deciding, that the allegations of the motion were sufficient as a matter of law to require the trial judge to reinstate the appeal, this Court may not find the trial court abused its discretion because no proof was offered in support of the motion. A motion is at issue without any further pleading, and the allegations...
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Hyundai Motor Am. v. Applewhite
...correctness of the action of the trial court will prevail." Brown v. State , 252 So. 2d 885, 887 (Miss. 1971) (citing Harvey v. State , 218 So. 2d 9, 10 (Miss. 1969) ).¶79. The question before us is whether Hyundai has presented evidence sufficient to undermine confidence in the verdict or ......
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Oates v. State, 53623
...proof in support of the motion, the presumption in favor of the correctness of the action of the trial court will prevail. Harvey v. State, 218 So.2d 9 (Miss.1969). (252 So.2d at The record does not show that the appellant offered any proof in support of the motion. Consequently, we are not......
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...is at issue without further pleading and the allegations thereof do not amount to any proof of the facts therein stated. Harvey v. State, 218 So.2d 9 (Miss.1969). In the absence of any proof in support of the motion we cannot put the trial court in error for overruling the same. Appellant c......
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Munnerlyn v. State
...on unsupported pleadings in criminal cases, as allegations in a motion do not amount to any proof of facts stated therein. Harvey v. State, 218 So.2d 9 (Miss.1969). ...