David E. Lyons v. Christopher B. Epps
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01194-COA
DAVID E. LYONS A/K/A DAVID EARL LYONS
A/K/A FOX
APPELLANT
v.
APPELLEE
CHRISTOPHER B. EPPS
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:
03/20/2007
HON. MARGARET CAREY-MCCRAY
LEFLORE COUNTY CIRCUIT COURT
DAVID E. LYONS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JANE L. MAPP
CIVIL - STATE BOARDS AND AGENCIES
PETITION DENIED
APPEAL DISMISSED - 04/07/2009
BEFORE KING, C.J., ROBERTS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
David Lyons, a pro se litigant, seeks judicial review of a decision rendered by the
Mississippi Department of Corrections’ (MDOC) Administrative Remedy Program regarding
the computation of his time to serve. Because we find that Lyons failed to timely file his
appeal pursuant to Mississippi Rule of Appellate Procedure 4(a) and (h), we lack jurisdiction
over his appeal and must dismiss it.
FACTS AND PROCEDURAL HISTORY
¶2.
On May 18, 2007, the trial court denied Lyons’s appeal, seeking judicial review of the
MDOC’s Administrative Remedy Program’s adverse decision regarding the computation of
his time to serve. On July 10, 2007, Lyons signed his notice of appeal, and the circuit clerk
stamped and filed his notice of appeal on July 16, 2007. On July 17, 2007, Lyons filed a
Rule 4(h) motion seeking to reopen the time to file his appeal. Lyons stated in his Rule 4(h)
motion that he did not receive notice of the trial court’s adverse order of May 18, 2007, until
June 25, 2007.
Timeliness of Appeal
¶3.
We conduct a de novo review of issues of law. Whitt v. Gordon, 872 So. 2d 71, 73
(¶7) (Miss. Ct. App. 2004). Mississippi Rule of Appellate Procedure 2(a)(1) provides for
mandatory dismissal of an appeal if the notice of appeal was not timely filed pursuant to
Mississippi Rules of Appellate Procedure 4 or 5. M.R.A.P. 2(a)(1).
¶4.
Rule 4(a) provides a time line for filing an appeal. Rule 4(a) provides in part that:
“[t]he notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within
30 days after the entry of judgment or order appealed from.” M.R.A.P. 4(a). Lyons signed
his notice of appeal on July 10, 2007, and the circuit clerk stamped and filed Lyons’s notice
on July 16, 2007. Lyons failed to timely file his notice of appeal within 30 days of the trial
court’s adverse order of May 18, 2007.
¶5.
Lyons argues that he did not receive notice of the trial court’s May 18, 2007, order
until June 25, 2007. “Situations where a defendant receives late notice of the entry of an
order are provided for in Rule 4(h).” Minchew v. State, 967 So. 2d 1244, 1247 (¶7) (Miss.
Ct. App. 2007). Rule 4(h) provides for a limited exception to Rule 4(a) by allowing a trial
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court to reopen the time period for an appeal. Rule 4(h) states:
The trial court, if it finds (a) that a party entitled to notice of the entry of a
judgment or order did not receive such notice from the clerk or any party
within 21 days of its entry and (b) that no party would be prejudiced, may,
upon motion filed within 180 days of entry of the judgment or order or within
7 days of receipt of such notice, whichever is earlier, reopen the time for
appeal for a period of 14 days from the date of entry of the order reopening the
time for appeal.
(Emphasis added).
¶6.
Pursuant to Rule 4(h), Lyons should have filed his Rule 4(h) motion to reopen his time
for appeal within seven days of June 25, 2007 – which is the date Lyons claims that he first
received notice of the trial court’s adverse order of May 18, 2007. However, Lyons waited
to file his Rule 4(h) motion until July 17, 2007.
¶7.
Because Lyons failed to timely file his appeal pursuant to Rule 4(a) and (h), this Court
lacks jurisdiction over Lyons’s appeal. Therefore, in accordance with Rule 2(a)(1), we must
dismiss this appeal.
¶8.
THIS APPEAL IS DISMISSED.
ASSESSED TO LEFLORE COUNTY.
ALL COSTS OF THIS APPEAL ARE
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND MAXWELL, JJ., CONCUR.
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