Roosevelt Barnes v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CP-01405-COA
ROOSEVELT BARNES
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
5/5/2009
HON. DAVID H. STRONG JR.
PIKE COUNTY CIRCUIT COURT
ROOSEVELT BARNES (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
APPEAL DISMISSED - 11/2/2010
EN BANC.
MAXWELL, J., FOR THE COURT:
¶1.
Roosevelt Barnes appeals the denial of his motion for post-conviction relief by the
Circuit Court of Pike County. Finding Barnes did not timely appeal, we dismiss his appeal
for lack of jurisdiction.
FACTS
¶2.
In 2007, the State charged Barnes for uttering a forgery. His indictment was based
on allegations he took a check from his employer, made the check out for $250, forged his
name as the payee, and cashed the check at the Winn-Dixie in McComb, Mississippi.
Barnes, assisted by appointed counsel, withdrew his initial not-guilty plea and entered a
guilty plea to the forgery charge. The circuit court questioned Barnes during the plea hearing
and found Barnes’s guilty plea was intelligently, knowingly, and voluntarily made. The
circuit court followed the State’s recommendation and sentenced Barnes to ten years in the
custody of the Mississippi Department of Corrections. The circuit court ordered that Barnes,
who had a prior grand larceny conviction, serve one year in the Intensive Supervision
Program (house arrest) and suspended the remaining nine years of his sentence.1 Because
of Barnes’s alleged failure to successfully comply with the terms of his house arrest, he was
required to serve the remainder of his sentence in MDOC custody.
¶3.
On October 16, 2008, he made his first of three filings with the Pike County Circuit
Court. In his October filing, he alleged the trial court failed to consider his prior felony, gave
him an illegal suspended sentence, and improperly revoked his suspended sentence. On
November 7, 2008, Barnes made another filing in the circuit court, alleging his indictment
was defective and requesting a copy of his sentencing order and indictment.
¶4.
In its February 2, 2009, order, the circuit court treated Barnes’s October 16, 2008,
handwritten filing as a motion for post-conviction relief and denied relief. The court
reasoned Barnes was not seeking a harsher sentence and found Barnes made an intelligent,
knowing, and voluntary guilty plea and was given a reasonable sentence for his forgery
conviction.
1
The circuit judge also ordered Barnes to serve five years of post-release supervision,
make restitution to Regions Bank in the amount of $250, pay a $2,500 fine, and complete
an alcohol and drug treatment program.
2
¶5.
On March 16, 2009, Barnes made a third filing entitled “Petition to Dismiss
Indictment.” He alleged his sentence exceeded the statutory maximum, his right to a speedy
trial had been violated, and his indictment was defective.
¶6.
On May 11, 2009, the circuit court addressed Barnes’s November 7, 2008, filing. The
circuit judge treated the filing as a second motion for post-conviction relief and found: (1)
this second petition was successive and procedurally barred; (2) Barnes was not entitled to
the requested documents free of charge without showing a specific need or the necessity of
the documents for a specific issue; and (3) Barnes’s knowing, intelligent, and voluntary
guilty plea waived any right to a jury trial.
¶7.
Barnes alleges he turned to the federal court system in June 2009 and filed a petition
for habeas corpus review. According to his notice of appeal, he claims on August 14, 2009,
he was ordered by the federal court to exhaust all state remedies.
¶8.
On August 21, 2009, Barnes filed a notice of appeal of the circuit court’s February 2,
2009, denial of his motion for post-conviction relief.
ANALYSIS
¶9.
Mississippi Rule of Appellate Procedure 4(a) provides appellants thirty days from the
entry of judgment to file notices of appeal. “An appeal shall be dismissed if the notice of
appeal was not timely filed pursuant to Rules 4 or 5.” 2 M.R.A.P. 2(a)(1) (emphasis added).
This deadline applies to post-conviction appellants just as it does for all other appellants.
Craft v. State, 966 So. 2d 856, 857-58 (¶¶8,12) (Miss. Ct. App. 2007); Johnson v. State, 962
2
Rule 5 of the Mississippi Rules of Appellate Procedure applies to interlocutory
appeals and is not applicable to this appeal. M.R.A.P. 5.
3
So. 2d 87, 89 (¶9) (Miss. Ct. App. 2007); and Penn v. State, 909 So. 2d 135, 136 (¶6) (Miss.
Ct. App. 2005).
¶10.
Barnes had thirty days from the entry of the circuit court’s order denying his motion
for post-conviction relief to file his appeal. He did not file his August 21, 2009, notice of
appeal until more than six months after the February 2, 2009, entry of the order denying postconviction relief and more than three months after the May 11, 2009, entry of the order
dismissing Barnes’s subsequent petitions as successive writs and procedurally barred.
¶11.
We may suspend Rule 4 for good cause shown and allow an out-of-time appeal in
criminal (but not civil) cases. Andrews v. State, 932 So. 2d 61, 62 (¶5) (Miss. Ct. App. 2006)
(citing M.R.A.P. 2). Instead of timely appealing, Barnes decided to pursue federal habeas
corpus review. Only after an August 2009 federal order did he seek appellate review in the
Mississippi courts of the circuit court’s February 2, 2009, order denying him post-conviction
relief.
¶12.
Because Barnes does not show good cause under Rule 2(a) for filing his notice of
appeal 201 days after the entry of order denying his motion for post-conviction relief, we
must dismiss his appeal for lack of jurisdiction.
¶13. THE APPEAL IS DISMISSED.
ASSESSED TO PIKE COUNTY.
ALL COSTS OF THIS APPEAL ARE
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
4
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