168 So. 3d 1080
Miss. Ct. App.2013Background
- Conwill sought an out-of-time appeal from a burglary conviction; the time to appeal was 30 days after the June 25, 2008 sentencing.
- Conwill had waived his right to appeal as part of a plea bargain for a separate aggravated-assault charge.
- A post-trial motion for judgment notwithstanding the verdict (JNOV) was filed by Conwill’s counsel on May 22, 2008, after the burglary judgment April 8, 2008, but the motion was untimely and did not toll the appeal period.
- The trial judge, under a mistaken belief that the untimely post-trial motion tolled the time to appeal, told Conwill the thirty days starts today, and Conwill again waived his right to appeal the burglary conviction.
- Conwill did not file any notice of appeal within the thirty-day period, and later attempts to revoke the waiver occurred outside the appeal period.
- The circuit court dismissed the PCR motion for an out-of-time appeal, and this Court affirmed, holding Conwill was not entitled to an out-of-time appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Conwill is entitled to an out-of-time appeal. | Conwill revocation of waiver within appeal period shows entitlement. | Waiver was valid and timely revocation did not occur within the appeal window. | No entitlement to out-of-time appeal. |
| Whether untimely post-trial motion tolled the appeal period. | Untimely tolling kept the clock running wrongfully. | Untimely motion cannot toll the appeal time; clock ran out before December 2008. | Untimely post-trial motion did not toll the appeal period. |
Key Cases Cited
- Dickey v. State, 662 So.2d 1106 (Miss. 1995) (establishes timing tolling standards for out-of-time appeals)
- Davis v. State, 36 So.3d 456 (Miss. Ct. App. 2010) (waiver of appeal must be informed and voluntary; revocation timing matters)
- Ross v. State, 16 So.3d 47 (Miss. Ct. App. 2011) (post-trial motions toll only if timely; tolling requires timely filing)
- Andrews v. State, 923 So.2d 239 (Miss. Ct. App. 2006) (voluntary dismissal of one conviction does not permit out-of-time appeal of another)
- Dickey v. State, 662 So.2d 1106 (Miss. 1995) (reiterated tolling principles for out-of-time appeals)
- Conwill v. State, 94 So.3d 1173 (Miss. Ct. App. 2011) (previous PCR denial affirmed; context for this case)