Derrick Randle v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CP-00910-COA

DERRICK RANDLE A/K/A DERRICK COX APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/11/2013
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DERRICK RANDLE (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DENIED MOTION FOR POST-
CONVICTION RELIEF
DISPOSITION: APPEAL DISMISSED - 11/18/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., FAIR AND JAMES, JJ.

IRVING, P.J., FOR THE COURT:

¶1. Randle appeals the dismissal of his post-conviction-relief (PCR) motion by the Circuit

Court of Holmes County. Randle appeals and raises two issues: (1) whether the circuit court

erred in using the same facts at two different revocation hearings and (2) whether the circuit

court erred in revoking his suspended sentence in a case for which he claims he had not

started serving the post-release-supervision (PRS) portion of that sentence. As will be

explained further, we dismiss Randle’s appeal as untimely.
FACTS

¶2. On February 5, 2008, Randle entered pleas of guilty to burglary of a commercial

building in cause number 11,827 and to receiving stolen property in cause number 11,821.

The circuit court sentenced Randle to concurrent terms of five years in the custody of the

Mississippi Department of Corrections (MDOC), with two years to serve and three years on

PRS.

¶3. On September 22, 2010, following a revocation hearing, the circuit court modified

Randle’s probation in cause numbers 11,821 and 11,827 and ordered Randle to complete a

restitution program. Randle was also ordered to pay court costs, attorney’s fees, and all

moneys in arrears.

¶4. On October 1, 2010, Randle entered a plea of guilty to business burglary in cause

number 10-0046. The circuit court sentenced Randle to five years in the custody of MDOC,

with six months to serve, credit for time already served, and thereafter four and one-half

years on PRS. The court also ordered Randle to pay restitution, attorney’s fees, and court

costs in cause number 10-0046 while completing the restitution program in cause numbers

11,821 and 11,827.

¶5. On February 11, 2011, at a revocation hearing in all three cause numbers, the State

presented Dewayne Montgomery, a parole officer, who testified that Randle had failed to

comply with the rules of the restitution program by disobeying staff, being loud and

boisterous, and being charged with disorderly conduct and public drunkenness by the Leake

County Sheriff’s Department on February 1, 2011. The circuit court ordered that Randle be

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transferred to another restitution center.

¶6. On March 22, 2011, the circuit court held a second revocation hearing in all three

cause numbers. The State presented Al Jobe, a parole officer, who testified that Randle

became aggressive towards Officer Montgomery and Sergeant Van Mayberry during the

attempt to transfer Randle to the new restitution center. The court revoked Randle’s

probation in all three cause numbers.

¶7. On November 29, 2012, Randle filed his PCR motion, which was summarily denied

by the circuit court on January 11, 2013. However, Randle did not attempt to appeal until

July 8, 2013, and even then, he did not appeal the circuit court’s January 11, 2013 order.

Instead, as we explain later in this opinion, he appealed the circuit court’s response to his

petition for a writ of mandamus that he filed with the Mississippi Supreme Court.

DISCUSSION

¶8. As noted, the judgment from which Randle attempted to appeal was rendered on

January 11, 2013. Rather than filing a timely appeal, Randle filed a petition for a writ of

mandamus with the Mississippi Supreme Court on May 31, 2013, seeking an order

compelling the circuit court to rule on his PCR motion filed on November 29, 2012. After

the circuit court’s response to the petition for a writ of mandamus on June 20, 2013, advising

the supreme court that Randle’s PCR motion had been decided January 11, 2013, the

supreme court dismissed Randle’s petition for a writ of mandamus as moot.

¶9. As stated, Randle filed the instant appeal on July 8, 2013. Interestingly, Randle’s

notice of appeal states that he is appealing the circuit court’s order of June 20, 2013. As

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noted, on June 20, 2013, the circuit court filed a response to Randle’s petition for a writ of

mandamus, not an order. Therefore, there is not an order on that date to appeal from. To the

extent that Randle seeks to appeal from the order of the circuit court entered on January 11,

2013, it is obvious that he is much too late, as his notice of appeal was filed well beyond the

thirty days permitted by Rule 4(a) of the Mississippi Rules of Appellate Procedure. He has

not sought an out-of-time appeal, and one has not been granted. Accordingly, we find that

this appeal must be dismissed for lack of jurisdiction.

¶10. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.

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