Donald Brown a/k/a Donald J. Brown v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CP-01311-COA

DONALD BROWN A/K/A DONALD J. BROWN APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/06/2019
TRIAL JUDGE: HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED: TISHOMINGO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DONALD BROWN (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAUREN GABRIELLE CANTRELL
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 04/06/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., WESTBROOKS AND SMITH, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. On or about January 11, 2019, Donald Brown was found guilty of DUI in the Justice

Court of Tishomingo County, Mississippi. Having missed the thirty-day time period to file

a written notice of appeal to circuit court, Brown filed a motion for an out-of-time appeal,

which the Circuit Court denied. He now appeals. Finding no abuse of discretion, we affirm

the circuit court’s decision.

STATEMENT OF THE FACTS

¶2. According to the circuit court, Brown was found guilty of a second DUI offense on
or about January 11, 2019, in the Justice Court of Tishomingo County.1 On June 24, 2019,

Brown filed a motion for an out-of-time appeal from justice court to circuit court, arguing

that he was unable to make a timely appeal due to the disability of being restricted by suicide

watch from January 18, 2019, through June 6, 2019. Notably, there is nothing in the record

that attests to when his suicide watch began. Within his brief, Brown included an exhibit

from Region IV Mental Health Services dated June 6, 2019, that stated, “Tishomingo County

Sheriff’s Department contacted the agency to complete a suicide risk assessment on Donald.

Donald has been on suicide watch for awhile now.” The report failed to mention when

Brown was placed on suicide watch. Regardless, this Court bases its findings “only on facts

shown in the record.” Brooks v. State, 832 So. 2d 607, 609 (¶6) (Miss. Ct. App. 2002).

¶3. The Circuit Court of Tishomingo County denied and dismissed the appeal, stating, “In

order to perfect an appeal of this conviction, the Petitioner was required to file a written

notice of appeal with the Tishomingo County Circuit Clerk within thirty days of the

judgment. The Petitioner failed to do so.” Brown now appeals.

DISCUSSION

¶4. This Court conducts a de novo review on the issue of “whether a circuit court has

jurisdiction to hear a particular matter[,] as it is a question of law.” Reeves v. City of Crystal

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The date of the conviction is unclear. Although Brown contends, and the circuit
court found, that Brown was convicted of a second DUI offense that is the basis of this
appeal, the record does not reflect any judgment or documentation attesting to a prior DUI
conviction.

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Springs, 54 So. 3d 322, 324-25 (¶6) (Miss. Ct. App. 2011) (quoting Raspberry v. City of

Aberdeen, 964 So. 2d 1211, 1213 (¶7) (Miss. Ct. App. 2007)).

¶5. Brown argues that the court erred by denying his motion for an out-of-time appeal

because he was restricted by suicide watch from January 18, 2019, to June 6, 2019 (notably,

with no documentation to attest to the starting date of the alleged restriction). Under the

applicable procedural rule,

Any person adjudged guilty of a criminal offense by a justice or municipal
court may appeal to county court or, if there is no county court, to circuit court,
by filing simultaneously a written notice of appeal, and both a cost bond and
an appearance bond (or cash deposit), as provided in Rules 29.3(a) and 29.4(a),
with the clerk of the circuit court having jurisdiction within thirty (30) days of
such judgment. This written notice of appeal and posting of the cost bond and
the appearance bond (or cash deposit) perfects the appeal.

MRCrP 29.1.

¶6. According to the circuit court, Brown was convicted of a second DUI in the justice

court. He then filed his motion for an out-of-time appeal in the circuit court, which justly

denied his motion, finding no provision in Rule 29.1 or at law for extending the time period

for appealing a conviction from justice court to circuit court. This Court in Reeves

established that there is no “excusable neglect” provision or condition for an extension under

Rule 29.1. Reeves, 54 So. 3d at 326 (¶14). This Court reiterated this holding in Williams v.

State, stating,

The Mississippi Rules of Appellate Procedure do not govern appeals from
justice or municipal courts to county or circuit court, however. Appeals from
justice court are governed by Rule 12.02. This is a distinction we made clear
in Reeves v. City of Crystal Springs, 54 So. 3d 322 (Miss. Ct. App. 2011). In

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Reeves, we rejected an argument that Rule 4(h) permitted the appellate court
to excuse untimely notices of appeal based upon “excusable neglect.”

Williams v. State, 155 So. 3d 892, 894 (¶14) (Miss. Ct. App. 2014).2

¶7. In Williams, the defendant was convicted in justice court of a misdemeanor home-

repair fraud; he then appealed. Id. at 892 (¶1). The county court dismissed the appeal due to

the appeal being filed fifty-eight days after the conviction and sentence. Id. at 893 (¶6). This

Court affirmed, stating,

While we acknowledge that this interpretation may result in a seemingly unfair
dismissal of a case, this Court must interpret the rule as written. Modifications
to the Uniform Rules of Circuit and County Court may only be made by the
Mississippi Supreme Court. . . . An appeal of a misdemeanor conviction to the
county court or circuit court was not, in the traditional sense, a true appeal to
review errors made by the trial court. By statute, Mississippi Code Annotated
section 99-35-1 (Rev. 2007), as well as by Rule 12.02(C), a timely and
properly perfected appeal stayed the lower court conviction and entitled the
appellant to a “trial de novo.” . . . If the appellant was acquitted in county or
circuit court, no punishment, fines, or assessments could be lawfully imposed
on him at all. Upon appeal, the appellant was again presumed innocent, and he
was entitled to a trial anew, as if there were no prior conviction.

Id. at 895 (¶¶14-15).

¶8. In the present case, Brown filed an appeal over five months after the judgment and

sought to file an out-of-time appeal due to his being on suicide watch. There are no present

exceptions that deem this untimely appeal from justice court to circuit court permissible.

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The Mississippi Rules of Criminal Procedure became effective on July 1, 2017,
supplanting the former Uniform Circuit and County Court Rules. As a result, Criminal Rule
29.1 supplanted Uniform Circuit and County Court Rule 12.02. The text of the two rules is
almost identical. Therefore, controlling authority addressing the language in Rule 12.02 can
be extended to Rule 29.1.

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Additionally, Brown has asserted that the provisions of Mississippi Rule of Appellate

Procedure 4(f) apply to his case; however, in Reeves this Court held that Mississippi Rule of

Appellate Procedure 4(g) was not applicable to appeals from municipal court to circuit court.

Reeves, 54 So. 3d at 326 (¶14). Pursuant to Reeves, the same applies from justice court to

circuit court.

¶9. We find that the circuit court correctly denied Brown’s motion for an out-of-time

appeal because the appeal was not timely and filed outside the thirty-day period. Therefore,

we affirm.

¶10. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD,
LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.

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