Minchew v. State

967 So. 2d 1244, 2007 WL 1191706
CourtCourt of Appeals of Mississippi
DecidedApril 24, 2007
Docket2006-CP-00485-COA
StatusPublished
Cited by7 cases

This text of 967 So. 2d 1244 (Minchew v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Minchew v. State, 967 So. 2d 1244, 2007 WL 1191706 (Mich. Ct. App. 2007).

Opinion

967 So.2d 1244 (2007)

Lawrence Wayne MINCHEW, Appellant
v.
STATE of Mississippi, Appellee.

No. 2006-CP-00485-COA.

Court of Appeals of Mississippi.

April 24, 2007.
Rehearing Denied November 6, 2007.

*1246 Lawrence Wayne Minchew (Pro Se).

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before MYERS, P.J., IRVING, BARNES and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. This case comes before this Court from the February 10, 2006 order of the Circuit Court of Harrison County denying a motion for post-conviction relief. Finding no error, we affirm.

FACTS

¶ 2. Lawrence Wayne Minchew was indicted by the grand jury of Harrison County in two causes, both as an habitual offender under the provisions of Mississippi Code Annotated § 99-19-83 (Rev.2000). One indictment, cause number 835(835), charged Minchew with two counts, the first for possession of a controlled substance with intent, the second for possession of a controlled substance. The other indictment, cause number 504(504), charged him with possession of pseudoephedrine. On November 5, 2002, Minchew entered a plea of guilty to the charge under 504 and to the first count of 835. The State agreed to pass to the files four other charges, one being the second count of 835. The trial judge accepted Minchew's pleas and sentenced him to five years under 504 and seventeen years under 835. The sentences were to run concurrently for a total of seventeen years.

¶ 3. On November 3, 2005, Minchew filed a motion for post-conviction relief in the Circuit Court of Harrison County which was denied by order of the court on February 10, 2006. Aggrieved by the denial, Minchew appeals.

DISCUSSION

1. Untimely Appeal

¶ 4. The State asserts that this Court lacks jurisdiction to hear this appeal because Minchew's notice of appeal was untimely filed. Mississippi Rule of Appellate Procedure 4(a) requires that a notice of appeal "[s]hall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." An appeal which is "not timely filed pursuant to Rule 4 or 5" shall be mandatorily dismissed. Rule (2)(a)(1). When challenging an appeal as untimely, the State bears the burden of proving that, under the terms of the prison mailbox rule, *1247 the prisoner's notice of appeal was not "filed" within the thirty-day window of Rule 4. Sykes v. State, 757 So.2d 997, 1000-01(¶ 14) (Miss.2000); Vance v. State, 941 So.2d 225, 227(¶ 5) (Miss.Ct.App.2006) (citation omitted). Under the prison mailbox rule, a pro se prisoner's notice of appeal is effectively "filed" under Rule 4 when the prisoner delivers his notice of appeal to the proper prison authorities for mailing. Sykes, 757 So.2d at 1000-01(¶ 14).

¶ 5. The order denying Minchew's motion for post-conviction relief was entered on February 10, 2006. The thirty-day period for filing would have run on March 12, 2006, a Sunday. Consequently, he had until March 13, 2006 to timely file his appeal. Minchew's notice of appeal was received and filed by the circuit court on March 23, 2006, ten days late. Further, as indicated in his certificate of service, Minchew did not cause his notice of appeal to be mailed until March 20, 2006, seven days after the expiration of his thirty-day deadline. Thus, Minchew's appeal was not timely filed under the prison mailbox rule, because, by his own admission, Minchew did not deliver his appeal to the prison authorities for mailing prior to the expiration of his thirty-day deadline. Consequently, there is no dispute as to whether Minchew's notice was untimely filed.

¶ 6. In his reply brief, Minchew urges this Court to suspend the thirty-day time requirement. This Court has the authority to suspend the thirty-day time requirement "in the interest of expediting decision or for other good cause shown." Rule 2(c); see also Rule 4 cmt. (time requirement may be suspended under Rule 4 in criminal cases, post-conviction cases included). Minchew asserts that the February 10, 2006 order denying his motion for post-conviction relief was not stamped and mailed from the circuit court until February 15, 2006, and that he did not receive it from the clerk until several days later. He claims further that the "law clerk at Marshall County Correctional" told him that the thirty days started to run from the day he received notice of the order. Minchew argues in essence that this constitutes good cause and that his appeal should be heard notwithstanding its untimeliness.

¶ 7. Situations where a defendant receives late notice of the entry of an order are provided for in Rule 4(h). When a notice of appeal is filed more than thirty days after the entry of the order appealed from, the trial court may reopen the time for appeal "if it finds [] that a party entitled to notice of the entry of a judgement or order did not receive such notice from the clerk or any party within 21 days of its entry. . . ." Rule 4(h) (emphasis added). "Reopening may be ordered only upon a motion filed within 180 days of the entry of a judgment or order or within 7 days of receipt of notice of such entry, whichever is earlier." Id. cmt. According to his own statements, Minchew received notice within twenty-one days of the entry of the order, and, in any event, filed no motion to reopen the time for appeal with the trial court. We recognize that Minchew also failed to file a motion for extension under Rule 4(g).

¶ 8. This Court has looked with care at Minchew's situation, taking into consideration that he is a pro se litigant. We find that Minchew failed to utilize the options available to him and additionally conclude that he has not made a showing of good cause. Therefore we decline to exercise our discretion to suspend the time-requirement of Rule 4. Alternatively, should Minchew's appeal not be procedurally barred we further find that it is without merit. We will address the merits of Minchew's individual claims in the interest of explanation with the understanding that "any subsequent *1248 review will stand on the bar alone." Walker v. State, 671 So.2d 581, 587 (Miss.1995).

2. Due process

¶ 9. Minchew claims that he was denied due process of law because he was not given a separate recidivism hearing and that, as a result, he was improperly sentenced as an habitual offender. He contends that under Rule 11.03(3) of the Uniform Rules of Circuit and County Court, he was entitled to a hearing, separate and apart from his guilty plea hearing, to determine whether he should be sentenced as an habitual offender.

¶ 10. A separate recidivism hearing is required where the defendant is convicted by jury trial; however, a defendant who enters a plea of guilty is not entitled to a separate hearing. Keyes v. State, 549 So.2d 949, 951 (Miss.1989); Crouch v. State, 826 So.2d 772, 775(¶ 4) (Miss.Ct.App.2002). The requirement of a separate recidivism hearing is a measure protective in nature, whose purpose is to withhold from the jury knowledge of the defendant's prior criminal convictions. Keyes, 549 So.2d at 951. In situations where the defendant enters a guilty plea, the need for a separate hearing does not arise; therefore, no separate hearing is required. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
967 So. 2d 1244, 2007 WL 1191706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minchew-v-state-missctapp-2007.