                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2007-CP-01163-SCT

ALBERT EDMOND

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        05/04/2007
TRIAL JUDGE:                             HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:               SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  ALBERT EDMOND (PRO SE)
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: JANE L. MAPP
NATURE OF THE CASE:                      CIVIL - OTHER
DISPOSITION:                             AFFIRMED - 07/31/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      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before his parole was revoked.”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

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       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


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        In his motion for out-of-time appeal, Edmond suggests that the first time that he
knew of Judge Evans’s decision was around December 1, 2005, when the Supreme Court
dismissed his writ of mandamus.

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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.

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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 re-open 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.




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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 did not know that

he had a right to court-appointed counsel, not that he was unaware of his right to appeal. Id.

The Court of Appeals determined that Parker was not without fault for his failure to timely

appeal. Id. Therefore, the Court of Appeals declined to suspend Rule 4. Id. In addition, the

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Court of Appeals held that the circuit court did not err “in denying Parker’s motion for out-

of-time appeal, as the judge had no discretion to allow an out-of-time appeal outside of 180

days from the entry of judgment.” Id.

¶12.   In King v. City of Richland, 856 So. 2d 667, 669 (Miss. Ct. App. 2003), King

appealed his convictions two hundred days after the entry of the circuit court order. King

appealed to county court his municipal-court convictions for two misdemeanor counts of

driving under the influence and careless driving. Id. at 668. A county court jury then

convicted King on both counts. Id. King appealed the county court convictions to the

Circuit Court of Rankin County. Id. The circuit court affirmed both convictions. Id.

Thereafter, King failed to file his appeal within thirty days of the circuit court’s order. Id.

King filed his motion for out-of-time appeal two hundred days after the circuit court order.

Id. at 669. The circuit court granted King an out-of-time appeal, finding that he did not

receive notice of the circuit court’s order. Id. at 668. On appeal, the Court of Appeals held

that the circuit court erred by granting the out-of-time appeal. Id. The Court of Appeals also

held that “neither the circuit court nor this Court has the authority to suspend this time limit”

and that the Court of Appeals was “without jurisdiction to consider this appeal on the

merits.” Id. at 669. The Court of Appeals dismissed King’s appeal for lack of jurisdiction.

Id.

¶13.   In Watson v. State, 841 So. 2d 218, 219 (Miss. Ct. App. 2003), Watson initially filed

an appeal almost one year after pleading guilty. The Court of Appeals noted that the proper

procedure for Watson was to file for post-conviction relief since he pleaded guilty. Id. The

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Court of Appeals also determined that it was without jurisdiction to review the case on the

issue of sentencing. Id. Further, the Court of Appeals noted that Watson filed well after the

180-day limit specified in Mississippi Rule of Appellate Procedure 4(h). Id. The Court of

Appeals dismissed the appeal without prejudice to allow the defendant to file for post-

conviction relief. Id. at 219.

¶14.   In Minchew v. State, 967 So. 2d 1244, 1247 (Miss. Ct. App. 2007), the Court of

Appeals affirmed the circuit court’s denial of post-conviction relief in part due to the

defendant’s untimely filing of his appeal. The Court of Appeals considered Minchew’s late

notice of the entry of the order. Id. Notwithstanding the late notice of the order, the Court

of Appeals declined to exercise discretion and suspend Rule 4. Id. Minchew admitted to

receiving notice within twenty-one days of entry of the order and admitted to untimely

mailing his appeal. Id.

¶15.   In Jefferson v. State, 958 So. 2d 1276, 1278-79 (Miss. Ct. App. 2007), the circuit

court dismissed the defendant’s petition for post-conviction relief. The Court of Appeals

found that Jefferson’s appeal was untimely, since the appeal was filed more than two months

after the circuit court’s dismissal. Id. at 1279. Despite the untimely filing, the Court of

Appeals considered the “unique circumstances” and proceeded to address the merits of the

case. Id. Presumably, the “unique circumstances” were due to Jefferson’s assertion that his

sentence was illegal and that his counsel provided ineffective assistance of counsel. Id. at

1278. The Court of Appeals determined that Jefferson had benefitted from the alleged illegal

sentence imposing house arrest, therefore, the error was harmless. Id. at 1279. However,

                                             8
the Court of Appeals also determined that the trial court had committed plain error by

sentencing Jefferson to a longer prison term than the statute allowed and thereby vacated the

sentence and remanded to the trial court for resentencing. Id. at 1281.

¶16.   The Court of Appeals also has addressed numerous cases pursuant to Mississippi Rule

of Appellate Procedure 4. See Heafner v. State, 947 So. 2d 354, 356 (Miss. Ct. App. 2007)

(affirmed untimely appeal where defendant’s counsel filed notice of appeal forty-four days

after post-conviction relief order was denied under Rule 4); Havard v. State, 911 So. 2d 991,

993 (Miss. Ct. App. 2005) (direct criminal appeal where defendant claimed that he did not

receive notice of order of conviction, even though record indicated that his attorney was sent

a copy and he filed an appeal almost eleven months after the order of conviction; the court

determined that in the interest of justice did not favor an out-of-time appeal under Rule 4);

Penn v. State, 909 So. 2d 135, 136 (Miss. Ct. App. 2005) (affirmed dismissal of post-

conviction relief case as untimely filed under Rule 4); Pearson v. State, 906 So. 2d 788, 790

(Miss. Ct. App. 2004) (affirmed dismissal of post-conviction relief as untimely filed under

Rule 4(a)).

¶17.   We find that the trial court did not err in denying Edmond’s motion for out-of-time

appeal, but for reasons other than those expressed by the trial court. Edmond filed his motion

for out-of-time appeal on August 29, 2006, more than five years after the July 2001 entry of

judgment. In addition, Edmond filed his motion more than 180 days after he admitted that

he had notice of the July 2001 judgment against him.



                                              9
¶18.   The trial court analyzed the motion pursuant to Rule 4 and held that Edmond’s claim

was outside the 180-day limitation period set forth in the rule. We find that the motion was

filed more than 180 days after the entry of the order, therefore, the trial court had no

jurisdiction to consider the motion. McGruder, 886 So. 2d at 2 (Miss. 2003) (citing

Coleman v. State, 804 So. 2d 1032, 1037 (Miss. 2002)); see also Parker, 921 So. 2d at 398;

King, 856 So. 2d at 669.

¶19.   In addition, we find that Edmond fails to demonstrate any reason why this Court

should suspend the rules and consider his claims. Parker, 921 So. 2d at 398; King, 856 So.

2d at 669; Minchew, 967 So. 2d at 1247. He admitted that he received notice of the entry

of the order on or about January 4, 2006. He waited more than 180 days from that date to

file his out-of-time appeal. We find that the trial court did not err by denying Edmond’s

motion for out-of-time appeal, but for reasons other than those enumerated by the trial court.

                                      CONCLUSION

¶20.   For the foregoing reasons, the judgment of the Sunflower County Circuit Court is

affirmed.

¶21.   AFFIRMED.

    SMITH, C.J., WALLER AND DIAZ, P.JJ., CARLSON, DICKINSON,
RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT
ONLY.




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