93 So. 3d 908
Miss. Ct. App.2012Background
- Derrick Arnold was indicted March 31, 2009 as a habitual offender on two counts of selling marijuana under Miss. Code Ann. §41-29-139(a)(1).
- Trial began October 5-6, 2009 in Scott County Circuit Court; Arnold was absent at both the start and resumption of trial and was not located during trial.
- Jury convicted Arnold on one count of selling marijuana; he was sentenced October 9, 2009 to six years with a $3,000 fine as a habitual offender.
- Arnold remained at large for about a year before being apprehended in August/September 2010 and later hired counsel.
- Arnold filed an out-of-time appeal motion in December 2010; circuit court denied it May 31, 2011; Arnold appeals.
- The issue on appeal is whether the circuit court abused its discretion in denying an out-of-time appeal where Arnold was tried in absentia and the court did not inquire into his absence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial in absentia without inquiry was reversible error | Arnold argues he was not voluntary absent; car trouble and fear of arrest prevented appearance | State contends Arnold voluntarily absented himself and trial proceeded properly | No abuse of discretion; Arnold voluntarily absent; trial in absentia proper |
Key Cases Cited
- Sandoval v. State, 631 So.2d 159 (Miss. 1994) (defendant in absentia if not voluntary waiver of presence)
- Wales v. State, 73 So.3d 1113 (Miss. 2011) (court did not abuse discretion; voluntary absence supported denial of out-of-time appeal)
- Taylor v. United States, 414 U.S. 17 (U.S. 1973) (right to be present may be waived by voluntary absence)
- Fair v. State, 571 So.2d 965 (Miss. 1990) (out-of-time appeal requires showing failure to timely perfect was not his fault)
- Dickey v. State, 662 So.2d 1106 (Miss. 1995) (preponderance showing attorney failed to timely appeal not defendant's fault)