Nealy v. State

ON MOTION TO AFFIRM APPELLANT’S CONVICTION AND SENTENCE ON CERTIFICATE OF APPEAL

PRATHER, Justice,

for the Court:

On a former day, appellant, James Michael Nealy was convicted of the crime of armed robbery in the Circuit Court of Pearl River County, Mississippi and was sentenced to serve a term of twenty-five (25) years imprisonment in the custody of the Department of Corrections. Thereafter, Nealy perfected an appeal to this Court on December 30, 1982. On August 30, 1983, the Clerk of this Court received the circuit clerk’s Certificate of Appeal in criminal cases. The transcript has not been filed with the Clerk of this Court nor have there been any pleadings of any type filed in this cause.

The office of the Attorney General has made a motion to affirm appellant’s conviction on information and belief that on June 1, 1984, appellant escaped from the Pearl River County Jail and as of this date remains at large.

The statutory authority under which the Attorney General of the State of Mississippi has initiated the motion is Miss. Code Ann. § 99-35-123 (1972) which states:

The Clerk of the supreme court, upon the receipt of a certificate of appeal, shall file the same and docket the case. The certificate shall be treated as the record of the cause, unless the appellant shall file a transcript thereof in the supreme court on or before the return day of the appeal, or within such other reasonable time as the court may allow. If a transcript shall not be filed, the supreme court shall affirm the conviction and award such judgment against the appellant and the sureties on his bond as it would render in case of affirmance on a complete record.

Furthermore, Miss. Code Ann. § 99-35-125 (1972) provides:

The return-day in the supreme court for all criminal cases, no matter from what court or county or district appealed, is the Monday of any term first after the expiration of twenty (20) days from the date of taking the appeal.

The appeal in this case was perfected on December 30, 1982. The return day has long since passed, and the transcript has not been filed nor has an extension been granted.

In view of the foregoing statutory authority, this Court affirms the conviction of appellant for the crime of armed robbery and the sentence of twenty-five years imprisonment on the certificate of appeal which is treated as the record of the cause in the absence of a transcript.

AFFIRMED.

WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.J.J., and DAN M. LEE, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur.