Anthony Swift v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-00322-COA
ANTHONY SWIFT
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
1/20/2006
HON. LEE J. HOWARD
CLAY COUNTY CIRCUIT COURT
ANTHONY SWIFT (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. DANIEL HINCHCLIFF
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED.
DISMISSED WITHOUT PREJUDICE – 03/27/2007
BEFORE LEE, P.J., BARNES AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Anthony Swift appeals from the denial of a motion for reconsideration, which he filed in the
Circuit Court of Clay County after having his probation revoked. Because there is no right to appeal
from a revocation of probation, we dismiss the appeal without prejudice.
FACTS
¶2.
On April 8, 2005, Swift, a convicted felon on probation, was indicted by a Clay County grand
jury for three counts of the sale of cocaine. After conducting a revocation hearing, on November 22,
2005, the Circuit Court of Clay revoked Swift’s probation. On December 8, 2005, Swift filed a pro
se motion for reconsideration, which the circuit court treated as a motion for post-conviction relief
and denied on January 20, 2006. Aggrieved by the court’s decision, Swift appeals pro se. He asserts
the following issues for this Court’s review:
I.
Whether the trial court erred in revoking Swift’s probation after it was proven
that law enforcement agents violated their protocol by not searching the
confidential informant before the investigation.
II.
Whether the trial court erred in revoking Swift’s probation during a vacation
term of court when the trial court had previously ruled that no revocation
hearing would be conducted until after trial was held in the matter.
III.
Whether Swift was denied due process of law when the trial court revoked
his probation without issuing findings of fact as to evidence relied on and
reasons for revoking probation.
IV.
Whether the State should have been allowed to use a court order to allow
Brenda Weaver to work as a confidential informant in violation of the AntiPeonage Act of 1864.
V.
Whether the trial court erred when it allowed the State to amend the
indictment from sale of cocaine to possession of cocaine in violation of
article 3, section 27 of the Mississippi Constitution.
ISSUES AND ANALYSIS
¶3.
Although the circuit court referred to Swift’s motion for reconsideration as a post-conviction
matter, this is not an appeal from the denial of a motion for post-conviction relief. Swift’s motion
for reconsideration was labeled as a motion for reconsideration and requested that the circuit court
reconsider his probation revocation; his motion made no mention of post-conviction relief. Thus,
Swift is now appealing from the denial of a motion for reconsideration, not the denial of postconviction relief.
¶4.
An order revoking probation is not appealable; instead, the proper venue for complaints about
probation revocation is a motion for post-conviction relief. Massingille v. State, 878 So. 2d 252, 254
(¶7) (Miss. Ct. App. 2004) (citing Beasley v. State, 795 So. 2d 539, 540 (¶6) (Miss. 2001)).
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Although we are “reluctant to dismiss a proceeding because one seeks the wrong remedy; and a mere
misnomer of the procedure should ordinarily not result in a dismissal . . . the attempt to appeal an
unappealable order is a total departure from the orderly administration of justice and cannot and
should not be approved.” Beasley, 795 So. 2d at 540 (¶6) (quoting Pipkin v. State, 292 So. 2d 181,
182 (Miss. 1974)). Because we find that Swift attempts to appeal an unappealable order, his appeal
is dismissed without prejudice.
¶5.
THE APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF CLAY
COUNTY IS DISMISSED WITHOUT PREJUDICE. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO CLAY COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ROBERTS AND CARLTON, JJ., CONCUR.
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