Robert K. Duncan v. State of Mississippi
228 So. 3d 359
| Miss. Ct. App. | 2017Background
- In Feb 2000 Duncan pleaded guilty to armed robbery and was sentenced to 15 years: 8 years to serve without parole and 7 years on post-release supervision.
- In Aug 2012 Duncan was arrested for burglary while on post-release supervision; at a Oct 3, 2012 revocation hearing he admitted the violations and the court revoked supervision, ordering him to serve the remaining 7 years in custody.
- Duncan filed a post-conviction relief (PCR) petition on Oct 2, 2014 challenging the revocation and other matters; the circuit court denied the PCR on Mar 6, 2015.
- Duncan contends he did not receive the denial order until an envelope postmarked Jul 10, 2015; he signed a motion for leave to file an out-of-time appeal on Aug 18, 2015 and it was filed Sept 8, 2015; the circuit court erroneously granted leave on Oct 7, 2015 and reopened appeal time under M.R.A.P. 4(h).
- Duncan failed to file the Rule 4(h) motion within seven days of his asserted receipt date and failed to file his notice of appeal within the 14-day period after the court’s reopening; the appellate court dismissed the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion for out-of-time appeal under M.R.A.P. 4(h) | Duncan: did not receive denial until Jul 10, 2015, so his out-of-time motion is timely | State: motion was not filed within seven days of receipt, so Rule 4(h) prerequisites unmet | Court: motion was untimely—Duncan signed it Aug 18 and filed Sept 8, beyond seven-day window; Rule 4(h) not satisfied |
| Validity of circuit court’s reopening of appeal period | Duncan: court’s Oct 7 order granted leave to file out-of-time appeal | State: trial court lacked authority because prerequisites were not met | Court: trial court erred to reopen under Rule 4(h); reopening was improper but appellate court could nonetheless consider suspending rules for justice, which it declined to do |
| Perfection of appeal after reopening | Duncan: filed notice of appeal (signed Oct 26, filed Nov 3, 2015) | State: notice was not filed within 14 days from reopening order | Court: notice was untimely as filed after the 14-day reopened period; earlier September notice was itself untimely and inconsequential |
| Whether equity/justice required allowing an out-of-time appeal | Duncan: effectively denied earlier notice of denial, so fairness supports relief | State: no sufficient excuse; procedural defaults apply | Court: no extraordinary circumstances shown; declined to suspend Rules 2 and 4; dismissed appeal for lack of jurisdiction |
Key Cases Cited
- Fairley v. State, 138 So. 3d 280 (Miss. Ct. App. 2014) (standard for probation revocation proof)
- Younger v. State, 749 So. 2d 219 (Miss. Ct. App. 1999) (proof standard cited in revocation context)
- Deloach v. State, 890 So. 2d 852 (Miss. 2004) (discusses authority to remedy untimely appeals and out-of-time appeals)
- Coleman v. State, 804 So. 2d 1032 (Miss. 2002) (questioning trial court authority to remedy untimely notices)
- Jones v. State, 355 So. 2d 89 (Miss. 1978) (outlines circumstances permitting out-of-time appeals for denied appellate rights)
- Fair v. State, 571 So. 2d 965 (Miss. 1990) (approving suspension of appellate rules when justice requires)
- McGruder v. State, 886 So. 2d 1 (Miss. 2003) (discusses suspension of rules for out-of-time appeals)