Herman Prather v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01452-COA
HERMAN PRATHER
APPELLANT
v.
APPELLEE
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:
01/17/2007
HON. ANDREW K. HOWORTH
TIPPAH COUNTY CIRCUIT COURT
HERMAN PRATHER (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED
DISMISSED FOR LACK OF JURISDICTION
- 10/14/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KING, C.J., IRVING AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Herman Prather pleaded guilty to sexual battery on December 1, 2005. Thereafter,
Prather filed a motion entitled “petition for post-conviction collateral relief act [sic] ” with
the Circuit Court of Tippah County, which was denied on January 19, 2007. Prather then
filed his notice of appeal on August 14, 2007, with the circuit court. Prather argues that the
trial court erred by denying his petition and asserts multiple assignments of error. We find
that Prather’s notice of appeal was not timely filed and dismiss his appeal for lack of
jurisdiction.
FACTS
¶2.
After Prather pleaded guilty in December 2005, he was sentenced to serve thirty years,
with fifteen years suspended, in the custody of the Mississippi Department of Corrections.
Prather filed a motion for post-conviction relief (PCR) in the trial court in November 2006
and such petition was denied by that court on January 19, 2007. Prather then filed his notice
of appeal with the trial court on August 14, 2007.
ANALYSIS
¶3.
Mississippi law requires that a “notice of appeal . . . shall be filed with the clerk of the
trial court within 30 days after the date of entry of the judgment.” M.R.A.P. 4(a). Any
appeal which violates the thirty-day requirement of Mississippi Rule of Appellate Procedure
4 “shall be dismissed.” M.R.A.P. 2(a)(1). A pro se prisoner’s PCR motion is considered
filed on the date that he delivers the papers to the prison authorities for mailing. Sykes v.
State, 757 So. 2d 997, 1000-01 (¶14) (Miss. 2000). This is known as the prison mailbox rule.
Id.
¶4.
The trial court issued its order denying Prather's PCR motion on January 19, 2007.
The thirty-day period for filing an appeal would have ended on Sunday, February 18, 2007.
The following Monday, February 19, 2007, was George Washington’s birthday, a state
holiday for which the clerk’s office was closed. Consequently, Prather had until Tuesday,
February 20, 2007, to timely file his appeal. See M.R.A.P. 26(a). Prather's notice of appeal
was received and filed by the trial court on August 14, 2007. It was forwarded to the
supreme court and filed by the supreme court on August 23, 2007.
Further, the
accompanying “affidavit of poverty” was not signed by the notary until August 9, 2007. This
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was considerably outside Prather’s thirty-day deadline to file an appeal. Thus, Prather's
appeal was not timely filed under the prison mailbox rule because he failed to deliver the
notice of appeal for mailing on or before February 20, 2007.
¶5.
While it is true that “this Court may suspend Rule 4, for good cause shown, and allow
out-of-time appeals in criminal cases . . . [t]he party seeking an out[-]of[-]time appeal carries
the burden of persuasion regarding the lack of a timely notice.” Andrews v. State, 932 So.
2d 61, 62 (¶5) (Miss. Ct. App. 2006) (citing M.R.A.P. 4). Prather has shown no good reason
as to why his notice of appeal was not filed until August 2007. This was more than six
months after the trial court had denied his PCR motion and over five months after his thirtyday deadline for filing a notice of appeal had expired. Prather claimed in his “notice to show
cause” that he is unable to read or write and relies on other inmates to help because the law
library does not provide any form of assistance. He has been able to file every other
document in a timely fashion such as his response to show-cause notice. It was filed with
the court only eight days after the show-cause notice was sent to Prather by the supreme
court clerk. He also claims that he timely delivered his notice of appeal for mailing to the
Marshall County Correctional Facility’s legal assistance clerk and so his appeal should be
considered timely filed under the mailbox rule. However, he does not provide any dates as
to when he “timely filed” his papers. The signature of the notary proves that the notice of
appeal was not signed until months after the thirty days to file the notice of appeal had
expired.
¶6.
It is evident that Prather’s notice of appeal was untimely filed. Thus, this Court has
no jurisdiction to consider the appeal.
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CONCLUSION
¶7.
We find that Prather’s notice of appeal was untimely filed. Therefore, we dismiss
Prather’s appeal for lack of jurisdiction.
¶8.
THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO TIPPAH COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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