Ken King v. City of Richland
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KM-01447-COA
KEN KING A/K/A KEN MARC KING
APPELLANT
v.
CITY OF RICHLAND, MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
12/21/2001
HON. WILLIAM E. CHAPMAN, III
RANKIN COUNTY CIRCUIT COURT
V. W. CARMODY
JAMIE KELLY MCBRIDE
JAY MAX KILPATRICK
PAUL B. HENDERSON
CRIMINAL - MISDEMEANOR
GUILTY OF DUI, FIRST OFFENSE, FINED
$749.50, SENTENCED TO FORTY-EIGHT
HOURS IN RANKIN COUNTY JAIL,
SUSPENDED. IN LIEU OF SUSPENDED JAIL
TERM, REQUIRED TO PERFORM SIXTEEN
HOURS OF COMMUNITY SERVICE WORK IN
RANKIN COUNTY WITHIN THE NEXT SIX
MONTHS. ALSO SENTENCED TO ONE
SESSION OF THE VICTIM IMPACT RESPONSE
SEMINAR AND TO ATTEND THE NEXT
AVAILABLE SESSION OF MASEP. ALSO
FOUND GUILTY OF CARELESS DRIVING AND
FINED $48.50
DISMISSED FOR LACK OF JURISDICTION:
07/15/2003
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE SOUTHWICK, P.J., LEE AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
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¶1.
This matter comes before the Court as an appeal from the decision of the Circuit Court of Rankin
County, sitting as an intermediate appellate court. The circuit court affirmed the convictions of Ken King
on two misdemeanor counts, first offense driving under the influence (DUI) and careless driving. King was
originally convicted on these charges in the Municipal Court of the City of Richland. King appealed his
convictions to the County Court of Rankin County, where the matter was tried de novo. The jury of the
county court convicted King on both counts.
¶2.
The City of Richland does not raise the matter of this Court's jurisdiction; however, jurisdiction may
not be conferred by agreement of the parties. Donald v. Reeves Transp. Co. of Calhoun, Ga., 538 So.
2d 1191, 1194 (Miss. 1989). This Court must remain mindful of questions relating to jurisdiction and
should, if appropriate, raise such issues on its own motion. Michael v. Michael, 650 So. 2d 469, 471
(Miss. 1995).
¶3.
Section 11-51-81 of the Mississippi Code Annotated. (Supp. 2001) governs a defendant's right
of appeal from a proceeding originating in a municipal court and it provides that:
there shall be no appeal from the circuit court to the supreme court of any case civil or
criminal which originated in a justice of the peace, municipal or police court and was thence
appealed to the county court and thence to the circuit court unless in the determination of
the case a constitutional question be necessarily involved and then only upon the allowance
of the appeal by the circuit judge or by a judge of the supreme court.
The Circuit Court of Rankin County found that the appeal involved a constitutional question and complied
with Miss. Code Ann. § 11-51-81 (Supp. 2001).
¶4.
However, in this case, King did not file a timely appeal of the circuit court's order affirming his
convictions. King failed to file his appeal within thirty days of the circuit court's order as required by
Mississippi Rule of Appellate Procedure 4(a). The circuit court found that King did not receive notice of
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the circuit court's order and that, pursuant to the Mississippi Rules of Appellate Procedure 4(g) and 4(h),
good cause existed to allow King additional time to perfect his appeal. The circuit court then entered an
order granting King an out-of-time appeal.
We find Mississippi Rule of Appellate Procedure 4(h)
dispositive and hold that it is not necessary to address whether the appeal involved a constitutional question
or address the merits of King's appeal.
¶5.
In Harris v. State, this Court held:
When a notice of appeal is not timely filed within thirty days of judgment, a trial court may
reopen the time for appeal if 'a party entitled to receive notice of entry of a judgment or
order did not receive such notice . . . within 21 days of its entry' and if 'no party would be
prejudiced . . . .' M.R.A.P. 4(h) A request to reopen is to be filed with the trial court
"within 180 days of entry of the judgment or order or within 7 days of receipt of such
notice [of the entry of judgment], whichever is earlier . . . .'
Harris v. State, 826 So. 2d 765, 767 (¶10) (Miss. Ct. App. 2002). This Court further held that " [w]e
find nothing that allows the suspension of those specific requirements." Id. at 768 (¶13).
¶6.
In this case, the circuit court's order affirming the convictions was entered on December 21, 2001.
"The last date that a request for an out-of-time appeal may properly be filed under Rule 4(h) is 180 days
after the judgment." Id. at (¶11). Therefore, King had to file his motion for an out-of-time appeal no later
than June 19, 2002. Instead, he filed his motion for an out-of-time appeal on July 9, 2002, two hundred
days after the filing of the circuit court's judgment.
¶7.
King did not file a notice of appeal within 180 days of the original entry of the order, as required
by M.R.A.P. 4(h). Furthermore, neither the circuit court nor this Court has the authority to suspend this
time limit. Harris, 826 So. 2d at 768 (¶13). Therefore, we find that the circuit court erred in allowing
King's out-of-time appeal, and this Court is without jurisdiction to consider this appeal on the merits.
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¶8.
THIS APPEAL IS HEREBY DISMISSED FOR LACK OF JURISDICTION DUE TO
THE UNTIMELINESS OF THE NOTICE OF APPEAL. COSTS OF THE APPEAL ARE
ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS AND CHANDLER, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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