Otha Horton v. Christopher Epps
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-01833-COA
OTHA HORTON
APPELLANT
v.
CHRISTOPHER EPPS, MARGARET BINGHAM
AND MICHELLE TAYLOR
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEES
8/10/2006
HON. SAMAC S. RICHARDSON
RANKIN COUNTY CIRCUIT COURT
OTHA HORTON (PRO SE)
JANE L. MAPP
CIVIL - OTHER
PETITION DISMISSED FOR LACK OF VENUE
JURISDICTION.
REVERSED AND REMANDED: 10/02/2007
BEFORE LEE, P.J., GRIFFIS AND ISHEE, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Otha Horton filed an action titled “Habeas Corpus or / alternative motion to show cause.”
The circuit judge dismissed Horton’s claim for lack of “venue jurisdiction.” On appeal, Horton
argues that venue was proper or, in the alternative, the trial court should have transferred the petition
to the proper venue. The State concedes error. Therefore, we reverse and remand this case for
further proceedings.
¶2.
On May 8, 2006, Horton filed his petition in the Circuit Court of Rankin County, Mississippi.
The basis of Horton’s petition surrounded an amendment to Mississippi Code Annotated Section
47-5-138.1 (Rev. 2004) which became effective on April 28, 2004. The amendment specifically
excluded certain offenders from being able to receive trusty earned time allowance. Id. One of the
new exclusions applied to offenders convicted of selling a controlled substance. Id. Prior to the
amendment, there was no such exclusion.
¶3.
On January 29, 2004, Horton committed the crime of sale of cocaine. On September 14,
2005, Horton pled guilty before the Attala County Circuit Court. The dates are significant because
Horton committed his crime before the amendment became effective, yet was sentenced after the
amendment took effect. Since Horton committed the crime prior to the amendment, he argues that
it would constitute an ex post facto law if it applied to him and that he should be eligible for trusty
earned time. Most important to this appeal, Horton did not challenge the validity of his conviction
or the resulting sentence.
¶4.
The trial court found that it lacked “venue jurisdiction” over the matter. Horton argues and
the State concedes that venue for the matter was proper in Rankin County, where the action was
filed. It appears that the trial court considered this matter as a motion for post-conviction relief and
thought it should have been brought in the county of the conviction, Attala County. However,
“[p]ost-conviction matters address issues related to the prisoner’s conviction that were not addressed
at the time of judgment.” Guy v. State, 915 So. 2d 508, 510 (¶5) (Miss. Ct. App. 2005) (emphasis
added). Horton does not take issue with his conviction or sentence, merely whether he is entitled
to trusty earned time. Therefore, venue should be governed by Mississippi Code Annotated Section
11-11-3 (Rev. 2004) and not the Mississippi Post-Conviction Relief Act.
¶5.
Section 11-11-3(a) provides that venue is proper in the county where a defendant resides or
in the county where the act or omission occurred. Horton was incarcerated at the Central
Mississippi Correction Facility located in Rankin County. Two of the defendants worked at the
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facility and the actions that denied Horton trusty earned time occurred in Rankin County. Therefore,
it appears that Rankin County was the appropriate county for Horton’s petition.
¶6.
Even if Rankin County were not the appropriate county for venue, the trial court should not
have dismissed the matter. Rule 82(d) of the Mississippi Rules of Civil Procedure states that
“[w]hen an action is filed laying venue in the wrong county, the action shall not be dismissed, but
the court, on timely motion, shall transfer the action to the court in which it might properly have
been filed and the case shall proceed as though originally filed therein.” (emphasis added).
Therefore, the trial court should have at the very least transferred the matter to the court where it
thought venue was proper.
¶7.
Finding that the dismissal was in error, we reverse and remand this case for further
proceedings consistent with this opinion.
¶8.
THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED
AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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