Larry D. Christmas, Jr. v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-KM-01332-SCT
LARRY D. CHRISTMAS, JR. a/k/a LARRY D.
CHRISTMAS a/k/a LARRY CHRISTMAS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/15/2016
TRIAL JUDGE: HON. ROGER T. CLARK
TRIAL COURT ATTORNEY: HERMAN F. COX
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: LARRY D. CHRISTMAS, JR. (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
DISPOSITION: AFFIRMED - 01/25/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. The circuit court dismissed as untimely Larry Christmas’s misdemeanor appeal from
county court. Christmas appealed the circuit court’s dismissal to this Court. Because the
record shows Christmas’s notice of appeal was filed too late and that Christmas failed to
request an extension, we affirm.
Background Facts and Procedural History
¶2. On December 15, 2015, Christmas was tried de novo in the County Court of Harrison
County, First District, on two misdemeanor traffic charges—(1) improper turn and (2) no
proof of liability insurance. At the close of trial, the county court found Christmas not guilty
on the charge of improper turn but guilty of no proof of liability insurance. The court fined
Christmas $200 plus court costs and remanded the matter to the justice court to enforce this
penalty.
¶3. The county court’s final judgment was entered January 13, 2016, giving Christmas
thirty days to file his notice of appeal to circuit court. On February 9, Christmas filed a
“Motion to Vacate Final Judgment and Order.” Then on February 12, 2016—exactly thirty
days after the final judgment was entered—Christmas mailed a notice of appeal and a $166
money order to the Harrison County Circuit Clerk. Due to President’s Day being the
following Monday, the post office did not deliver the mailing until Tuesday, February 16,
2016. Christmas’s notice was stamped filed on February 17—five days after it was due.
¶4. On June 27, 2016, the circuit court requested Christmas show cause why his appeal
should not be dismissed as untimely. Christmas responded in writing on July 11, 2016. First,
he asserted his notice of appeal was timely because it was filed on February 12—the date he
mailed it. Second, he argued his February 9 motion to vacate tolled the time to file his
appeal. Third, he claimed he had complied with all filing requirements by February 12. And,
but for the clerk’s office supposedly closing early, his notice would have been filed that day.1
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Specifically, Christmas alleged he went to the circuit clerk’s office on February 12
to file his notice of appeal. The circuit clerk calculated Christmas’s cost bond and directed
Christmas to return with a money order in that amount. So Christmas left the clerk’s office
and went to the post office to get the money order. According to Christmas, he returned to
the clerk’s office at 4:55 p.m. He passed the employees of the office leaving. They told him
the office was closed. And when Christmas tried the doors, he found them locked. He
claimed it was 4:57 p.m. Christmas insisted that, but for the clerk’s office closing five
minutes early, he would have been able to file his notice of appeal that day. Instead, he
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¶5. The circuit court dismissed Christmas’s appeal as untimely. Because the motion to
vacate was not filed within ten days of the final judgment, it had not tolled the thirty-day time
period to file an appeal. See M.R.A.P. 4(e); URCCC 10.05. Thus, Christmas had until
February 12, 2016, to file—not mail, but file—his notice of appeal. See URCCC 12.03. And
the record clearly showed Christmas’s notice of appeal was not filed until February 17.
¶6. Upon dismissal, Christmas appealed to this Court.
Analysis
¶7. Christmas raises multiple issues challenging the underlying traffic stop that led to his
no-proof-of-liability-insurance adjudication. But the record contains no evidence about the
underlying stop.2 And “[w]e have on many occasions held that we must decide each case
by the facts shown in the record, not assertions in the brief[.]” Mason v. State, 440 So. 2d
318, 319 (Miss. 1983) (citations omitted). So, no matter how “sincere [Christmas] may be
in [his] assertions,” if facts asserted are not in the record, “we cannot know them.” Id.
¶8. The only issue supported by the record—and the only issue addressed by the circuit
court—is the timeliness of Christmas’s appeal from county court. Consequently, this is the
only issue before us.
¶9. Christmas’s attempted appeal predated the adoption of the Mississippi Rules of
Criminal Procedure. So former Uniform Rule of Circuit and County Court Practice 12.03
printed off a mailing label from the U.S. Postal Service’s website and dropped his notice and
money order in the mail that evening.
2
The appellate record is limited to the circuit-court filings and does not include the
county-court record.
3
controlled.3 Under Rule 12.03, Christmas had thirty days from January 13, 2016—the date
of the entry of his county-court adjudication—to file his written notice. See URCCC 12.03
(“Any person adjudicated guilty of a criminal offense by a county court, . . . may appeal to
the circuit court having jurisdiction by filing written notice with the clerk of the county court
within 30 days of the entry of the judgment.”). As the circuit court correctly noted, his
February 9 motion to vacate did not toll the time to file an appeal, because it was not filed
within ten days of the entry of the county-court judgment. M.R.A.P. 4(e); URCCC 10.05.
Nor did mailing his notice and money order on February 12 perfect his appeal. While
nothing prohibited Christmas from mailing his notice, Rule 12.03 is clear an appeal is
perfected “by filing written notice.”4 URCCC 12.03 (emphasis added). Here, the record is
clear Christmas’s notice was not filed until February 17, 2016—five days too late. So the
circuit court did not err in dismissing the appeal as untimely.
¶10. Nor, as Christmas suggests on appeal to this court, did the circuit judge abuse his
discretion by not granting him an extension under Mississippi Rule of Appellate Procedure
4(g). See URCCC 12.03 (“Extensions may be granted as proscribed [sic] in Miss. Sup. Ct.
R. 4(g).”). By not giving him a Rule 4(g) extension, Christmas insists the circuit court
wrongfully held him liable for the clerk’s office’s “premature closing” on February 12, 2016.
3
Effective July 1, 2017, Mississippi Rule of Criminal Procedure 30 now governs
misdemeanor appeals from county court.
4
To argue mailing his notice perfected his appeal, Christmas cited Mississippi Rule
of Appellate Procedure 25. But that rule is even more clear that, even though “[f]iling may
be accomplished by mail addressed to the clerk or by electronic means in conformity with
procedures established by the Court,” such “filing shall not be timely unless the papers are
received by the clerk within the time fixed for filing[.]” M.R.A.P. 25(a) (emphasis added).
4
¶11. Christmas, however, never moved for an extension. And while Rule 4(g) makes clear
a trial court may grant an extension, it may do so only “upon motion filed not later than 30
days after the expiration of the time otherwise prescribed by this rule.” M.R.A.P. 4(g).
While this rule gave Christmas until March 12, 2016, to move for an extension based on the
clerk’s office’s alleged premature closing, the record shows he never sought an extension.
Instead, he relied on his mistaken belief that either his February 9 motion tolled the thirty-day
time limit, which it did not, or mailing his notice on February 12 was sufficient, which it was
not.
¶12. Only after he had received the show-cause notice did he assert for the first time on
July 11, 2016, that, but for the clerk’s office closing at 4:55 p.m., his notice would have been
on time. And at that point, three months had passed, and the circuit court was without
authority to grant an extension. See M.R.A.P. 4(g). So, despite Christmas’s assertions, the
circuit judge did not abuse his discretion by not granting a Rule 4(g) extension.
¶13. The dissent insists the circuit judge abused his discretion because he did not suspend
the criminal appeals deadline and give Christmas an untimely appeal. In other words, the
dissent believes the circuit judge was wrong for following and enforcing Mississippi’s
established thirty-day criminal appeals deadline. We disagree.
¶14. We do however acknowledge there is authority conferred by Rule 2(c) that permits
the “Supreme Court or the Court of Appeals” to suspend the appeals deadline in criminal
cases. M.R.A.P. 2(c). But Rule 2(c) does not mention circuit courts. Still, even if Rule 2(c)
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applies to a circuit court sitting as an appellate court5—as the circuit court was here—its
application is purely discretionary. What Rule 2(c) says is that the appellate court “may”
suspend the rules. See M.R.A.P. 2(c).6 It does not say that the court “shall” or “must”
suspend the rules. So discretion is obviously involved.
¶15. We recognize that, at first blush, the circuit court might be perceived as harshly
enforcing a deadline. We also understand Christmas’s argument and acknowledge the
dissent’s preference that the circuit judge grant an out-of-time appeal. But this Court is not
supposed to substitute what we would have done, if we were in the circuit judge’s position,
faced with Christmas’s show-cause response. After review, we simply cannot fault the
circuit judge for abiding by the general thirty-day appellate deadline.
¶16. The dissent mentions that Christmas’s explanation about why he mailed his notice was
uncontradicted. But a similar pertinent truth is that his allegations were unsworn. Based on
the paucity of record evidence, this Court lacks the “definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it reached”7 necessary to
find the circuit court abused its discretion under Rule 2(c).
¶17. Therefore, we affirm.
¶18. AFFIRMED.
5
We have held the Mississippi Rules of Appellate Procedure apply in appeals from
county to circuit court. Am. Inv’rs, Inc. v. King, 733 So. 2d 830, 832 (Miss. 1999).
6
See also McGruder v. State, 886 So. 2d 1, 2 (Miss. 2003) (holding appellate courts
may suspend rules “‘when justice demands’ to allow an out-of-time appeal in criminal
cases” (quoting Fair v. State, 571 So. 2d 965, 966 (Miss. 1990))).
7
Ill. Cent. R.R. Co. v. McDaniel, 951 So. 2d 523, 526 (Miss. 2006).
6
WALLER, C.J., RANDOLPH, P.J., COLEMAN, BEAM, CHAMBERLIN AND
ISHEE, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY KING, J.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶19. Because I would permit this appeal to proceed in the circuit court, I respectfully
dissent. The County Court of Harrison County, First Judicial District, entered a final
judgment on January 13, 2016, that found Larry D. Christmas, Jr., guilty of having had no
proof of liability insurance, ordered him to pay a $200 fine and court costs, and remanded
the case to justice court for enforcement of the penalty. Uniform Rule of Circuit and County
Court Practice 12.03 afforded Christmas an avenue for “appeal to the circuit court having
jurisdiction by filing written notice with the clerk of the county court within 30 days of the
entry of the final judgment,” with extensions granted “as proscribed [sic] in [Mississippi Rule
of Appellate Procedure] 4(g).”8 URCCC 12.03(A). Unless excused, the appellant also must
provide a bond in an amount set by the judge or clerk of the county court. URCCC 12.03(B).
¶20. The thirty-day period for perfecting the appeal expired on February 12, 2016. On that
day, Christmas mailed a notice of appeal and a money order in the amount of $166 to the
Harrison County Circuit Clerk.9 The post office delivered the mailing on February 16, 2016,
8
Rule 12.03 was eliminated effective July 1, 2017, the effective date of the
Mississippi Rules of Criminal Procedure, which now govern criminal appeals to circuit court
from county court. See M.R.Cr.P. 30. Although Rule 12.03(A) used the word proscribed,
meaning prohibited, when the rule is read in context, undoubtedly the rule should have used
the word prescribed, meaning to lay down a rule. Proscribe, Webster’s Ninth New
Collegiate Dictionary (9th ed. 1983); Prescribe, Webster’s Ninth New Collegiate Dictionary
(9th ed. 1983).
9
By statute, Harrison County has two judicial districts, and the clerk of each judicial
district’s circuit court is also the clerk of the respective county court. Miss. Code Ann. § 9-1-
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and the clerk’s office filed the notice of appeal on February 17, 2016, five days late.
Christmas never moved for an extension of time pursuant to Mississippi Rule of Appellate
Procedure 4(g), which provides that, for good cause shown, “[t]he trial court may extend the
time for filing a notice of appeal upon motion filed not later than 30 days after the expiration
of the time otherwise prescribed by this rule.” M.R.A.P. 4(g). A motion for an extension of
time filed outside the thirty-day period may be granted for excusable neglect. M.R.A.P. 4(g).
¶21. On June 27, 2016, the circuit clerk issued a show-cause notice to Christmas, directing
him to show cause why the appeal should not be dismissed as untimely. On July 11, 2016,
Christmas, pro se, responded in writing to the show-cause notice, asserting, inter alia, that
his appeal should be deemed timely because, but for the early closure of the clerk’s office,
he would have perfected his appeal in a timely manner on February 12, 2016. Christmas
averred that he arrived at the courthouse at 4:37 p.m. on February 12, 2016, but was forced
to wait for assistance while the clerk finished a phone call. After the conclusion of the phone
call, the clerk reviewed Christmas’s proposed filing, determined the amount that would be
required to file the appeal, and directed him to obtain a money order in that amount.
Christmas said that he obtained the money order from the nearby post office and returned to
the courthouse at 4:55 p.m. After passing through security, he headed toward the clerk’s
office, but discovered that its employees were leaving for the evening; one of them informed
him that the clerk’s office was now closed. Christmas averred that, at 4:57 p.m., the doors
to the clerk’s office were locked. Christmas then elected to mail the notice of appeal and
39 (Rev. 2014).
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money order. He claimed that, because all that was required was his payment and a file
stamp, three minutes would have been enough time to have enabled him to file the appeal on
time.
¶22. Although Christmas served the show-cause response on the Harrison County
prosecuting attorney, that attorney never responded to Christmas’s averments concerning the
early closure of the circuit clerk’s office. Therefore, Christmas’s factual account of the filing
went uncontradicted and undisputed. In its opinion dismissing the appeal as untimely, the
circuit court set forth Christmas’s averments about the early closure of the clerk’s office.
Nonetheless, the circuit court applied the strict requirements of the applicable appellate rules
and found that, because the appeal had not been delivered to the clerk’s office within thirty
days of the final judgment, it was untimely.
¶23. Although the majority casts the circuit court’s decision to apply the rules strictly as
an exercise of discretion, nothing indicates that the circuit court considered its authority to
suspend the appellate rules to extend the time for Christmas’s criminal appeal under
Mississippi Rule of Appellate Procedure 2(c). Rule 2(c) provides:
(c) Suspension of Rules. In the interest of expediting decision, or for other
good cause shown, the Supreme Court or the Court of Appeals may suspend
the requirements or provisions of any of these rules in a particular case on
application of a party or on its own motion and may order proceedings in
accordance with its direction. The time for taking an appeal under Rules 4 or
5 may be extended in criminal and post-conviction cases, but not in civil cases.
M.R.A.P. 2(c). Rule 2(c) was applicable to Christmas’s appeal because “[a]n appeal from
county court to circuit court is controlled by the Mississippi Rules of Civil Procedure (“Miss.
R. Civ. P.”), the URCCC, and the M.R.A.P.” Am. Investors, Inc. v. King, 733 So. 2d 830,
9
832 (Miss. 1999); Van Meter v. Alford, 774 So. 2d 430, 431 (Miss. 2000) (recognizing that
the Mississippi Rules of Appellate Procedure govern appeals from county courts to circuit
courts). We have held that this Court may suspend the appellate rules, when justice demands,
to allow an out-of-time appeal in criminal cases. McGruder v. State, 886 So. 2d 1, 2 (Miss.
2003). Rule 2(c) does specify that it is the Supreme Court or the Court of Appeals that may
suspend the time for taking an appeal in a criminal case. But because the same due process
considerations apply when the circuit court sits as an appellate court, logic demands that the
circuit court likewise is empowered to suspend the appellate rules to extend the time for
taking an appeal in a criminal case as provided in Rule 2(c).
¶24. I would find that, because Christmas made an unrebutted showing of good cause for
the late filing of his notice of appeal, the circuit court should have suspended the rules and
extended the time for taking an appeal. Christmas averred that, but for the early closure of
the clerk’s office, he would have perfected his appeal just before 5:00 p.m. on February 12,
2016. Although Christmas waited until the end of the thirty-day period to perfect his appeal,
he was entitled to rely on the clerk’s office remaining open during its statutorily prescribed
hours from 8:00 a.m. to 5:00 p.m. Miss. Code Ann. § 25-1-99 (Rev. 2010); see also Miss.
Const. Art. 3, § 24 (providing a state constitutional guarantee of open courts). His version
of events is plausible. Most importantly, Christmas’s averments went wholly unaddressed
by the State. Thus, his claim that he would have perfected his appeal in a timely manner but
for the early closure of the clerk’s office stands unrebutted. An appellate court is empowered
to grant a criminal appeal out of time if the failure to perfect the appeal was though no fault
10
of the appellant and justice so demands. Stokes v. State, 66 So. 3d 746, 749 (Miss. Ct. App.
2011). Because this standard was met in this case, I would reverse and remand for
Christmas’s appeal to proceed in the circuit court.
KING, J., JOINS THIS OPINION.
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