Loi Quoc Tran v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-00840-COA
LOI QUOC TRAN
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
9/19/2003
HON. KOSTA N. VLAHOS
HARRISON COUNTY CIRCUIT COURT
AUSTIN R. NIMOCKS
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
CRIMINAL - FELONY
CONVICTED OF COUNT I, BURGLARY OF A
DWELLING AND SENTENCED TO TWENTYFIVE YEARS; COUNT II, ARMED ROBBERY
AND SENTENCED TO TEN YEARS; AND
COUNT III, AGGRAVATED ASSAULT AND
SENTENCED TO TWENTY YEARS, WITH THE
SENTENCES IN COUNT I AND III RUNNING
CONCURRENTLY AND THE SENTENCE IN
COUNT II RUNNING CONSECUTIVELY TO
THE SENTENCES IMPOSED IN COUNTS I AND
II. ALL SENTENCES TO BE SERVED IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS
APPEAL DISMISSED: 12/06/2005
EN BANC
IRVING, J., FOR THE COURT:
¶1.
Loi Quoc Tran was convicted in the Second Judicial District of Harrison County of burglary of
a dwelling, armed robbery, and aggravated assault. He appeals, asserting that the trial court erred in failing
to (1) properly consider his motion to dismiss because of a violation of his statutory right to a speedy trial,
and (2) allow him to argue to the jury the defense of duress. He also asserts that he received ineffective
assistance of counsel.
¶2.
Because we find that the notice of appeal was not filed within thirty days of the date of the final
judgment, we lack jurisdiction; therefore, we dismiss this appeal.
FACTS
¶3.
On January 31, 2001, two masked men entered the home of Dung Nguyen in order to burglarize
the residence. At the time that the two men entered the home, the only persons present were Nguyen’s
daughter and son. The men pistol whipped Nguyen’s daughter and demanded any money that was in the
home. The men bound the young boy and girl in duct tape, and commenced to ransack the house while
searching for valuables. While the men were searching the house, Nguyen returned home and became
locked in a violent struggle with the intruders. During the struggle, Nguyen was shot twice. After the
shooting, the two men fled the house, and Nguyen’s daughter called the police. The two men, later
identified as Loi Quoc Tran and his co-defendant, Dung Van Tran, were located hiding in the bushes of
an adjoining subdivision, after having left a trail of clothing and gun parts from Nguyen’s home. The
intruders also left their blue Toyota parked outside of Nguyen’s house, with the car keys abandoned inside
the house.
¶4.
Loi and Dung were indicted on July 30, 2001, by the grand jury of Harrison County. Tran was
arraigned on August 10, 2001, and went to trial on September 17, 2003. On September 19, the jury
convicted Tran on all counts. The trial judge entered final judgment on the same date, that is, September
19. Eleven days later, on September 30, Tran’s trial counsel filed a motion for a new trial. The record
does not reflect that this motion was ever ruled on. Even if it had been, it would have been of no avail
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because the motion was untimely, as it was not filed within ten days of the entry of the final judgment. See
URCCC 10.05(6). The notice of appeal was not filed until April 9, 2004, more than six months after the
entry of the final judgment. Therefore, it too was untimely, as it was not filed within thirty days of the final
judgment. See M.R.A.P. 4(a).
¶5.
The record reflects that on March 3, 2004, Tran filed a pro se motion seeking appointment of new
counsel to represent him on appeal. It is unclear from the record whether new counsel was appointed or
retained by Tran, as the record contains no order appointing appellate counsel. It is clear, however, that
Tran acquired new counsel because appellate counsel did not represent Tran during the trial.
¶6.
In its brief, the State points out that the record contains no ruling on Tran’s motion for a new trial,
although the State does not mention that the motion was untimely. Likewise, Tran’s appellate counsel
points out that there was no ruling on the motion for a new trial, but does not mention that the motion was
untimely. Additionally, Tran’s appellate counsel attests to the filing of the notice of appeal on April 9, 2004,
but offers no explanation how this appeal can be considered timely, given the fact that the final judgment
was entered on September 19, 2003. The record contains no order allowing Tran to appeal out of time.
¶7.
On these facts, notwithstanding the failure of the State to raise the jurisdictional issue, we have no
alternative but to dismiss this appeal, for we lack jurisdiction.
¶8.
THIS APPEAL IS DISMISSED, AND ALL COSTS OF THIS APPEAL ARE ASSESSED
TO HARRISON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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