Lott v. State

115 So. 3d 903, 2013 WL 2996129, 2013 Miss. App. LEXIS 360
Court of Appeals of Mississippi·Decided June 18, 2013·No. No. 2012-CP-00340-COA·Published·Cited by 7 cases

Opinion

BARNES, J.,

for the Court:

¶ 1. Stevie Lott, appearing pro se, appeals the Circuit Court of Jones County’s order clarifying his sentence after his post-release supervision was revoked. Treating Lott’s motion as one for post-conviction relief, we find no error and affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In January 2001, a Jones County jury convicted Lott of two counts of aggravated assault. The trial court sentenced him to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years to serve, and fifteen years suspended, with five of those years on post-release supervision.1

¶ 3. On October 3, 2008, Officer Jason Cook filed a petition to have Lott’s post-release supervision revoked because Lott left the state of Mississippi and did not pay certain court-ordered fees. On March 24, 2009, a revocation hearing was held. Officer Cook testified that Lott had not reported to his field officer since June 11, 2008, and had failed to pay a $1,500 community-service fee or participate in the circuit court’s community-service program.

¶ 4. Lott denied the accusations, stating that after approximately six years2 of imprisonment, he was released and began serving his post-release supervision. Lott explained he requested a transfer of his supervision to Minnesota, where he had more family and friends. He waited six months for permission to transfer to Minnesota, reporting to his field officer in Mississippi during this time. He then decided to leave the state before he had permission to do so. He traveled to Minnesota and reported to a field officer, who told him his transfer had been denied. Additionally, Lott claimed participation in the community-service program was not in his sentencing order, and Officer Cook had waived his probation fees.

¶ 5. The trial court found Lott left Mississippi in violation of the terms of his post-release supervision. Thus, the trial court revoked Lott’s post-release supervision and required him to serve the remainder of his original sentence in the full-time custody of the MDOC.

¶ 6. In March 2011, Lott filed a motion to show cause for why his post-release [906] supervision was revoked. The trial court denied the motion, explaining that Lott left Mississippi in violation of the terms of his post-release supervision. In December 2011, Lott moved to clarify his sentence,3 claiming that his sentence was ambiguous because at the revocation hearing, the trial judge merely required him “to serve the sentence.”4

¶ 7. On January 27, 2012, the trial court entered an order in response, stating Lott was to serve the remaining time of his original twenty-year sentence in the full-time custody of the MDOC. In its order, the trial court did not state specifically that it considered Lott’s motion as one for post-conviction relief; however, the subject matter of Lott’s claims is consistent with post-conviction proceedings.5 Under Mississippi Code Annotated section 99-39-5(l)(h) (Supp.2012), one ground for post-conviction relief is that the petitioner’s “sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody.” On March 1, 2012, Lott filed an untimely notice of appeal of the trial court’s order. Lott’s arguments on appeal include that his post-release supervision was improperly revoked.6

STANDARD OF REVIEW

¶ 8. In reviewing a trial court’s denial of a motion for post-conviction relief, the appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Presley v. State, 48 So.3d 526, 528-29 (¶ 10) (Miss.2010) (quoting Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)). Questions of law, however, are reviewed de novo. Id. at 529.

ANALYSIS

I. Jurisdiction

¶ 9. Lott’s notice of appeal, was not filed in the trial court within thirty days of entry of the trial court’s judgment. Appellate rules require that the notice of appeal “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). The trial court denied Lott’s motion to clarify his sentence on January 27, 2012. Lott’s notice of appeal was stamped “filed” by the circuit court clerk on March 2, 2012, but is otherwise without a date.7 Generally, an appeal shall [907] be dismissed unless the notice of appeal is timely filed pursuant to Mississippi Rule of Appellate Procedure 4 or 5. M.R.A.P. 2(a)(1). However, post-conviction relief petitions are governed by Mississippi Rule of Appellate Procedure 2(c), which allows this Court to suspend the requirements of the appellate rules in the interest of justice. Specifically, this Court may suspend Rule 4(a) to allow an out-of-time appeal in criminal cases and “civil” post-conviction relief actions. See M.R.A.P. 4 cmt.

¶ 10. We must determine whether appellate jurisdiction exists. The prison-mailbox rule states that in pro se post-conviction relief proceedings, the prisoner’s motion is considered delivered for filing when the prisoner gives the documents to prison officials for mailing. Sykes v. State, 757 So.2d 997, 1000-01 (¶ 14) (Miss.2000). The State bears the burden of proving the prisoner’s notice of appeal was untimely filed. Melton v. State, 930 So.2d 452, 455 (¶ 8) (Miss.Ct.App.2006).

¶ 11. There is no indication in the record when Lott delivered his documents to prison officials for mailing. Since his notice of appeal was received by the trial court only five days late, it is possible that the documents were delivered to prison authorities within the time frame allowed by Rule 4(a). The State has admitted that under the prison-mailbox rule, the appeal was probably timely noticed. Therefore, we exercise our discretion under Rule 2(c) to suspend the thirty-day requirement to the extent Lott’s filing may have been untimely. Accordingly, we find jurisdiction proper and address Lott’s appeal on the merits.

2. Revocation

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Lott v. State, 115 So. 3d 903, 2013 WL 2996129, 2013 Miss. App. LEXIS 360 (Mich. Ct. App. 2013).

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