160 So. 3d 213
Miss.2015Background
- Robert P. Terrell indicted on 20 counts relating to alleged scheme to defraud John McLendon of real property and timber (mail fraud, identity fraud, timber theft, false pretense, and related conspiracies).
- Allegations: forged warranty deeds conveying McLendon’s land to co-defendant Hawthorne, mailed fraudulent documents across counties, and sold timber for $20,300.
- Terrell filed six pretrial motions to quash/consolidate/dismiss multiple counts claiming double jeopardy; the trial court denied those motions after a hearing.
- At the hearing Terrell’s counsel stated intent to appeal and characterized the trial court’s ruling as a final judgment; Terrell then filed a notice of appeal and sought a stay of trial.
- The State moved that the appeal was improper because Terrell did not seek leave under Mississippi Rule of Appellate Procedure 5 for an interlocutory appeal; the trial was subsequently continued.
- Supreme Court dismissed the appeal without prejudice for lack of jurisdiction because Terrell failed to comply with Rule 5.
Issues
| Issue | Plaintiff's Argument (Terrell) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether denial of double jeopardy motion was final and appealable as of right | Denial is a final judgment on a collateral constitutional right and immediately appealable | Although final in effect, such denials are appealed via interlocutory procedure; not appeal of right | Denial of double jeopardy is subject to interlocutory appeal; cannot be heard absent Rule 5 permission |
| Whether Terrell complied with Mississippi Rule of Appellate Procedure 5 | Counsel treated the order as final and filed a direct appeal | Terrell did not file a petition for permission to appeal under Rule 5, so appeal is improper | Terrell failed to seek permission; appeal dismissed for lack of jurisdiction |
| Whether the trial court erred by refusing to stay trial pending appeal | A stay was required while double jeopardy appeal was pending | Terrell did not follow interlocutory-appeal procedure that would permit a stay request to this Court | Issue moot as trial was later continued; but remedy would have required proper Rule 5 petition |
Key Cases Cited
- Beckwith v. State, 615 So. 2d 1134 (Miss. 1992) (denial of double-jeopardy claim characterized as final and immediately appealable, but reviewed interlocutorily)
- Kelly v. State, 80 So. 3d 802 (Miss. 2012) (prejudgment double-jeopardy appeals reviewed on interlocutory basis)
- Donald v. Reeves Transp. Co., 538 So. 2d 1191 (Miss. 1989) (interlocutory appeals require petition for permission under the Court’s rules)
- Cox v. State, 134 So. 3d 712 (Miss. 2014) (citing Beckwith on interlocutory double-jeopardy review)