Marshall v. State

Decision Date28 September 1995
Docket NumberNos. 92-KA-00606-SC,KA-01294-SCT,92-KA-00909-SCT,s. 92-KA-00606-SC
Citation662 So.2d 566
PartiesDavid Gaston MARSHALL v. STATE of Mississippi. Michael Angelo PATTON v. STATE of Mississippi. , and 92-
CourtMississippi Supreme Court

Jim Davis, Gulfport, for petitioners.

Michael C. Moore, Attorney General, W. Glenn Watts, Special Ass't Attorney General, Jeffrey Klingfuss, Special Ass't Attorney General, Jackson, for respondents.

En Banc.



SMITH, Justice, for the Court:

This is a case of first impression by two defendants, David G. Marshall and Michael Angelo Patton, considering Miss.Code Ann. §§ 9-4-1 to -17 (Supp.1994), challenging the constitutionality of the Court of Appeals of the State of Mississippi as enacted by the Legislature during the regular 1994 session.

Marshall was convicted in the Circuit Court of the First Judicial District of Harrison County of two counts of sexual battery and one count of kidnaping. He received two thirty-year sentences for the sexual battery counts, to run concurrently with each other; and twenty-five years on the kidnaping count. Patton was convicted in the Circuit Court of the First Judicial District of Harrison County of manslaughter and was sentenced to serve a term of sixteen years with the Mississippi Department of Corrections.

Both Marshall and Patton have appealed their convictions to this Court. Both cases were fully briefed and initially deflected to the Court of Appeals per the screening process established under this Court's rules.

On January 12, 1995, Jim Davis, attorney for both Marshall and Patton, filed in both cases an Objection and/or Motion that the cases not be remanded or assigned to the Court of Appeals. Marshall and Patton claim that the new appellate court is unconstitutional and that the Legislature, in creating the Court of Appeals, usurped this Court's authority in the area of rulemaking and court procedure. As a result of this objection/motion both cases were by order of this Court returned from the Court of Appeals.

The State argues that Miss.Code Ann. §§ 9-4-1 to -17 (Supp.1994) are constitutional, that Marshall and Patton lack standing to challenge the constitutionality of the statute as enacted and that this Court's authority in rulemaking and court procedure has not been usurped by the Legislature.

A thorough analysis of the issues raised by Marshall and Patton reveal both to be without merit. However, the State is incorrect in its argument that the defendants lack standing to challenge the constitutionality of the statutes as enacted, because both cases were in fact initially deflected to the Court of Appeals by a valid internal process in accordance with the rules of this Court.

This Court has stated its authority to promulgate rules of court practice, procedure and evidence in Newell v. State, 308 So.2d 71 (Miss.1975), and Hall v. State, 539 So.2d 1338 (Miss.1989). However, neither decision may be interpreted as prohibiting the Legislature from establishing the Court of Appeals.

This Court and its predecessor, the High Court of Errors and Appeals, has for one hundred fifty-five years interpreted Article 6, Section 172 of the Mississippi Constitution as authorizing the Legislature to create inferior courts. In Thomas v. State, 6 Miss. (5 Howard) 20 (1840), this Court's predecessor considered the question of whether the Legislature could, under a constitutional provision similar to current § 172 establish an inferior criminal court. The High Court of Errors and Appeals answered that question affirmatively. The Court of Appeals is clearly an inferior court and the Legislature had full constitutional authority to establish such inferior court.


We begin our analysis considering Article 6, Section 144 of the Mississippi Constitution which provides that: "[t]he judicial power of the state shall be vested in a Supreme Court and such other courts as are provided for in this constitution."

Additionally, Article 6, Section 146 of the Mississippi Constitution states:

The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law. The Legislature may by general law provide for the Supreme Court to have original and appellate jurisdiction as to any appeal directly from an administrative agency charged by law with the responsibility for approval or disapproval of rates sought to be charged the public by any public utility. The Supreme Court shall consider cases and proceedings for modification of public utility rates in an expeditious manner regardless of their position on the court docket.

Finally Article 6, Section 172 of the Mississippi Constitution states: "The legislature shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient."

Pursuant to this authority, the Legislature established the Court of Appeals under Miss.Code Ann. §§ 9-4-1 to -17 (Supp.1994). Marshall and Patton now allege that the Court of Appeals is unconstitutional, for the following reasons.

First, Marshall and Patton cite Miss.Code Ann. § 99-35-101 (Supp.1994), which states:

Any person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.

Marshall and Patton further rely on Harden v. State, 460 So.2d 1194 (Miss.1984), where this Court, when speaking of the strongest imperatives under which an appellate court may operate, stated that the first was the prohibition against double jeopardy, and

[t]he other is the reluctance of an appellate court to interfere with trial proceedings. Again, experience has taught us that our function is to decide cases which have been concluded in the trial court, and on lawful appeal here. Any person who feels aggrieved at a lower court decision has an absolute right of appeal to this Court, at which time all his grievances can be addressed by us.

Harden, 460 So.2d at 1200.

Marshall and Patton seize on this last sentence and claim that they have an absolute right of appeal to the Supreme Court, not the Court of Appeals. Obviously, the right to appeal is not absolute, there are requirements attached. Though a person convicted of a crime in circuit court could until now take an appeal to the Supreme Court and have it heard by this Court, the right to have the appeal heard could be infringed upon if certain procedures were not followed. The right of appeal is not absolute where the notice of appeal is not timely filed; where the filing fee and appeal costs are not

paid in the case of a non-indigent defendant; where in forma pauperis status is not sought, in the case of an indigent defendant; or where a brief is not timely filed. More importantly, the "absolute right" referred to in Harden is statutory, not constitutional, and thus subject to legislative change. The new statutory scheme is not inconsistent with the original and retained statutory right in that appeals are taken to this court and ultimately, in some manner, if only by denial of certiorari, finally resolved by this court

Second, Marshall and Patton apparently claim that under the unamended version of Article 6, Section 146 of the Mississippi Constitution, the Supreme Court is the one and only appellate court of the state. They further claim that an "inferior court," as provided in Miss. Const. art. 6, § 172, cannot be an appellate court. The authority cited by Marshall and Patton shows that the term inferior court generally has two meanings: one is in the purely descriptive sense, as in any state court in Mississippi besides the Supreme Court is necessarily an inferior court in relation to the Supreme Court, as it would be subordinate in the state's judicial system. The other definition is a technical one, meaning that an inferior court is one with certain specific characteristics, including, according to Marshall's and Patton's authorities, the following:

All courts from which an appeal lies are inferior courts in relation to the appellate court before which their judgment may be carried; but they are not therefore inferior courts in the technical sense of those words. They apply to courts of a special and limited jurisdiction, which are erected on such principles that their judgments, taken alone, are entirely disregarded, and the proceedings must show their jurisdiction. The courts of the United States are all of limited jurisdiction, and their proceedings are erroneous, if the jurisdiction be not shown upon them. Judgments rendered in such cases may certainly be reversed, but this court is not prepared to say that they are absolute nullities, which may be totally disregarded.

Kempe's Lessee v. Kennedy, 9 U.S. (5 Cranch) 173, 185, 3 L.Ed. 70 (1809).

The High Court of Errors and Appeals, early on declared the meaning of the term "inferior courts" as it appears in § 172. In Thomas v. State, 6 Miss. (5 Howard) 20 (1840), that Court considered the question of whether the Legislature could, under a constitutional provision similar to § 172, establish an inferior criminal court. In finding the criminal court constitutional, the Court found:

[i]t is not essential in order to sustain the authority of the legislature to create this court, to consider it inferior in relation to the circuit courts, or to any other court created by the constitution save that of the court of errors and appeals.

Thomas, 6 Miss. (5 Howard) at 28.

The Court revisited the "inferior court" concept in Houston v. Royston, 8 Miss. (7 Howard) 543 (1843). The appellants argued that since the Constitution of 1832 specifically established the superior court of chancery giving it full jurisdiction in all matters...

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11 cases
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    • United States
    • Mississippi Supreme Court
    • 6 Febrero 1997
    ... ... Harden v. State, 460 So.2d 1194, 1200 (Miss.1984). Under our present appellate scheme, all appeals are to this Court, but are subject to assignment to the Court of Appeals. Miss.Code Ann. §§ 9-4-1 to 17 (Supp 1996). (See discussion of the appellate structure in Marshall v. State, 662 So.2d 566 (Miss.1995)). Furthermore, where states have incorporated appellate review as an integral part of the system for final adjudication of guilt or innocence, that review is raised to the plane of federal due process and equal protection. Evitts v. Lucey, 469 U.S. 387, 392, ... ...
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