                     IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2014-KA-00157-SCT

ROBERT PATRICK TERRELL a.k.a. ROBERT P.
TERRELL a.k.a. PATRICK TERRELL

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                             02/04/2014
TRIAL JUDGE:                                  HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED:                    JEFFERSON DAVIS COUNTY CIRCUIT
                                              COURT
ATTORNEY FOR APPELLANT:                       J. M. RITCHEY
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                              BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                            HALDON J. KITTRELL
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  APPEAL DISMISSED WITHOUT
                                              PREJUDICE - 03/26/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.

       COLEMAN, JUSTICE, FOR THE COURT:

¶1.    Robert Terrell was indicted on twenty counts of mail fraud, conspiracy to commit mail

fraud, fraudulent use of identity, conspiracy to commit fraudulent use of identity, timber

theft, conspiracy to commit timber theft, false pretense, and conspiracy to commit false

pretense. Terrell filed six motions to quash, consolidate, or dismiss various counts. The trial

court denied the motions. Terrell appeals, claiming double jeopardy and that the trial court

erred by not staying his trial. The State asserts that Terrell’s appeal is not properly before the

Court. We agree and dismiss for lack of jurisdiction.
                      Factual Background and Procedural History

¶2.    Robert Terrell, Ricardo Hawthorne, and Learchie Nicholson have been charged with

conspiring to defraud and actually defrauding John McLendon out of real property and the

timber on that property. Terrell and his co-indictees allegedly forged McLendon’s name on

fraudulent warranty deeds that conveyed McLendon’s land to Hawthorne, and they mailed

the fraudulent documents across county lines. They are further alleged to have sold the

timber on McLendon’s land for $20,300. In a twenty-count indictment, Terrell was charged

with six counts of mail fraud; six counts of conspiracy to commit mail fraud; one count of

fraudulent use of identity; one count of conspiracy to commit fraudulent use of identity; one

count of timber theft; one count of conspiracy to commit timber theft; two counts of false

pretense; and two counts of conspiracy to commit false pretense.

¶3.    Claiming that many charges would result in a double jeopardy violation, Terrell filed

six motions to quash, consolidate, or dismiss various counts. After a hearing, the trial court

denied the motions. At the end of the hearing, Terrell’s counsel indicated his intent to

appeal, and the trial court referenced an interlocutory appeal. Terrell’s counsel interrupted

the court, saying he considered the court’s ruling to be a final judgment on the double

jeopardy claim and that the appeal would not be interlocutory. Terrell filed a notice of appeal

the following day.

                                         Discussion




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¶4.    Terrell asserts that the trial court’s denial of his double jeopardy claims was error. He

also asserts that the trial court erred by refusing to stay his trial pending the instant appeal.

The State maintains that Terrell’s appeal is not properly before the Court.

       I. Whether Terrell’s appeal is properly before the Court.

¶5.    At his hearing, Terrell’s counsel indicated that he would appeal and stated that he did

not believe the appeal to be interlocutory because the court’s ruling was a final judgment.

Subsequently, he appealed and followed the procedure for a direct appeal. The State

maintains that Terrell’s appeal is not properly before the Court because he failed to comply

with Mississippi Rule of Appellate Procedure 5 for interlocutory appeals.

¶6.    Terrell relies on Beckwith v. State, 615 So. 2d 1134 (Miss. 1992), and argues that the

trial court’s denial of his double jeopardy claims was a final judgment. He quotes the

following from Beckwith:

       Orders denying motions to dismiss an indictment on double jeopardy . . . are
       likewise immediately appealable. . . . Refusals to dismiss an indictment for
       violation of the Double Jeopardy Clause . . . are truly final and collateral, and
       the asserted rights . . . would be irretrievably lost if review were postponed
       until trial is completed.

       ...

       . . . Beckwith’s rights under a double jeopardy claim in this case go beyond his
       right not to be convicted, and are of immediate urgency, justifying
       determination now. Because of the unique nature of the denial by a circuit
       court of a colorable double jeopardy claim, involving as it does the
       Constitutional right not to be prosecuted for the offense, it is final.

Beckwith, 615 So. 2d at 1141, 1146 (internal citations omitted). Terrell writes that his

double jeopardy rights “are collateral to and totally independent of his guilt or innocence or



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the conduct of his trial, and are of immediate urgency.” See Beckwith, 615 So. 2d at 1145.

Be that as it may, the appeal is no less interlocutory than any other appeal that arises before

trial or before a final ruling on the issues or charges before the court. Because Terrell is

appealing a pretrial order, it is certainly an interlocutory appeal.

¶7.    Terrell’s reliance on Beckwith is misleading. The Beckwith Court held that a ruling

on a defendant’s double jeopardy claims was final and appealable, but such an appeal is still

interlocutory. In fact, the appeal in Beckwith was interlocutory. The principle from

Beckwith that a trial court’s denial of a double jeopardy claim is a final judgment and

immediately appealable has been cited several times. In each case, the denial of the

defendant’s double jeopardy claim was appealed via an interlocutory appeal. See Cox v.

State, 134 So. 3d 712 (Miss. 2014); Kelly v. State, 80 So. 3d 802 (Miss. 2012); Roberson v.

State, 856 So. 2d 532 (Miss. Ct. App. 2003). In Kelly v. State, relying on Beckwith, the

Court specially held that “prejudgment double-jeopardy appeals are reviewed on an

interlocutory basis[.]” Kelly, 80 So. 3d at 804 (¶ 7). See also Griffin v. State, 545 So. 2d

729, 732 (Miss. 1989) (“motions raising issues of double jeopardy warrant interlocutory

review”) (citing Harden v. State, 460 So. 2d 1194, 1200-1201 (Miss. 1984)).

¶8.    To appeal an interlocutory order, the party appealing must file “a petition for

permission to appeal with the clerk of the Supreme Court[.]” Miss. R. App. P. 5. “[A]ppeals

from interlocutory orders are not appeals of right[,]” and the party seeking to appeal must ask

the Supreme Court for permission to appeal. Donald v. Reeves Transp. Co. of Calhoun,

Georgia, 538 So. 2d 1191, 1194 (Miss. 1989). Where the Court has not granted permission



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to appeal, we do not have the authority pursuant to our rules to hear the appeal, and neither

the parties nor the lower court can confer the authority to hear it. See id. at 1195. Because

Terrell did not seek permission to appeal pursuant to Rule 5, we decline to consider his

appeal.

       II. Whether the trial court erred in refusing to stay the trial.

¶9.    Terrell claims that the trial court’s refusal to stay the trial pending his appeal

constitutes reversible error. He repeats his argument that denial of a double jeopardy claim

is a final judgment that is immediately appealable. The State responds that the issue is moot

because the trial court has since continued the case. Had Terrell properly petitioned the

Court for interlocutory appeal, he could have requested a stay of the trial court proceedings.

Regardless, the point is moot because the trial has been continued pending the appeal.

                                        Conclusion

¶10.   Terrell failed to comply with Rule 5 of the Mississippi Rules of Appellate Procedure

pertaining to interlocutory appeals. Thus, we dismiss Terrell’s appeal because it is not

properly before the Court.

¶11.   THE APPEAL IS DISMISSED WITHOUT PREJUDICE.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
CHANDLER, PIERCE AND KING, JJ., CONCUR.




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