IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-CP-01367-COA
ROBERT K. DUNCAN A/K/A ROBERT DUNCAN A/K/A ROBERT KENNETH DUNCAN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/06/2015 TRIAL JUDGE: HON. KATHY KING JACKSON COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ROBERT K. DUNCAN (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: APPEAL DISMISSED - 10/17/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. IRVING, P.J., FOR THE COURT: ¶1. Robert K. Duncan a ppeals f rom the judgm ent of the Jackso n County Circuit Court, deny ing his m otion f

or post- c o n v i c t i o n relief (PCR). Because Duncan’s appeal was not tim ely f iled, we dism iss f

or lack of jurisdiction.
FACTS ¶2. In February 2000, Duncan p leaded guilty to arm ed robbery in violation of Mississippi
Code Annotated s ection 97-3-79 (Rev. 2014). The circuit court s e nte n ced him to f if teen
y ears i n the custody of the M ississippi Departm ent o f Corrections (MDOC), with eight y ears
to serve without parole or early release, and the f inal seven y ears to be served on post-releasesupervision. 1

¶3. In August 2012, while o ut of prison on post-release supervision, Duncan was arrested
i n Neshoba County f

or burglary of a d

welling. 2 The State f

iled an order of r e v o c a t i o n , charging that Duncan had violated several conditions of his probation. On October 3, 2012,
the circuit court held a revocation hearing, w herein Duncan adm itted bef ore t h e c o u r t t hat
he h a d com m itted t he crim es set f orth in the order of revocation, and waived his right to require the State to p rove t he a llegations set f o rth in the order of revocation. Consequently , the court revoked D uncan’s p ost-release supervision and r equired him to serve the rem aining
seven y ears of

his sentence f

or arm ed robbery

in the custody

of the MDOC. ¶4. On October 2, 2 014, Duncan f iled a PCR pet i t i o n , i n w h i c h he argued that (1) his post-release supervision was unlawf ully revoked; (2) t here existed evidence of m aterial f acts
not previously pres e n t e d r e quiring vacation of his sentence; (3) his plea was m ade involuntarily ; and (4) his sentence was wrongly revoked o n t he basis of n onpay m ent of
f ines. 3 On March 6, 2015, the c ircuit court denied Duncan’s m otion on t he basis that he, in
open court, adm itted that he had violated the term s of his post-release supervision and had

w a i v e d h is right to require t he State to p rove the charges against him

. The court h e l d t h a t Duncan had “m ore likely than not” violated the term s of his probation, pursuant to Fairley

v. State , 138 So. 3d 280, 282 (¶4) (Miss. Ct. App. 2014) (quoting Y ounger v. State , 749 So.

1 T h e circu it co u r

t o rd ered th at th is s en ten ce ru n co n secu tiv ely to a sen ten ce t h at D u n c an w as alread y

serv in g in N esh o b a C o u n t y o n a sep arate g ran d

- larcen y c h arg e.

2 T h e N esh o b a C o u n ty

g ran d j u ry

d i d n o t retu rn an in d ictm en t.

3 D u n can d o es n o t arg u e th is f in al issu e o n ap p eal. 22d 219, 222 (¶12) (Miss. Ct. App. 1999)).

¶5. The r ecord i n d i c ates that o n July 5, 2015, D uncan wrote a letter to the circuit-court clerk, st a t i n g that he had not heard any t hing regarding the PCR m otion he had f iled on October 2, 2014, a nd inquiring about its status. T he record f u rther indicates that on July 10, 2015, Duncan received a copy of the circuit court’s order deny ing h i s P C R m otion, which
the circuit clerk sent him

f ollowing receipt of

his July 5, 2015 letter. On August 18, 2015,
Duncan signed a m otion f o r leave to f

ile an out-of

-tim e appeal, asserting that h e h a d not received n otice of the d enial of his PCR m o tion until J uly 10, 2015. T h i s m otion was not
f iled with the Jackson County Circuit Clerk until Septem ber 8 , 2015. A notice of appeal was also f iled on Septem

ber 8, 2015. ¶6. The circuit court entered an order on October 7 , 2015, granting Duncan’s m otion f or leave t o f i le an out-of

- t im e a ppeal. In its order, the circuit court m istake n l y p r o v i d e d that
Duncan “was not m ailed a c opy o f the order deny i ng his [ PCR] [ m ]otion u ntil approxim ately Septem ber 8, 2015,” which contrasts with Duncan’s assertion that he r eceived notice of his
PCR m otion’s denial on July 1 0, 2015. The circ u i t c ourt reopened the tim e f or D uncan to
f ile a n appeal, pursuant to Rule 4(h) of the Mississippi Rules of A pp e l l a t e Procedure.
Duncan f iled another notice of

appeal on Novem

ber 3, 2015.
DISCUSSION ¶7. Rule 2(a)(1) o f the Mississippi Rules of A ppellate Procedure provides that “[ a]n appeal shall be dism issed if the notice of appeal was not tim ely f i led p ursuant to Rules 4 or 5

. ” Rule 4(a) of the Mississippi Rules of Appellate Procedure p rovides that a notice o f

3a p p e a l pursuant to Rule 3 of the Mississippi R ules of Appellate Procedure m ust be f i l e d
within thirty day s af

ter the date of the entry o f the judgm ent being appealed. R ule 4(h) provides that a trial court m a y reopen the tim e f

or an appeal in lim i ted circum stances: The trial court, i f i t f

inds (a) that a party e ntitled to notice of the entry o f a judgm ent or order d i d n o t r eceive such n otice f rom the clerk or any p arty wi t h i n 2 1 d a y s o f i ts entry and (b) that no party would be prejudiced, m ay , upon m otion f

iled within 180 day s of e ntry of the judgm e nt or order or within 7 day s of receipt o f such notice, w h i c h e v e r is earlier, r eopen the tim e f or appeal f o r a p eriod of 14 day s f

r om the date of entry of t he order reopening the tim e f or appeal. M.R.A.P. 4(h). ¶8. Duncan d id not f

ile his m otion f

or an out-of

-tim e appeal within the prescribed seven day s of r eceipt o f n otice that his PCR m otion h ad been denied. In his m otion f or leave to f

ile
an out-of -tim e appeal, Duncan asserts that he received a letter on July 10, 2015, inf

orm ing
him o f t h e March 6, 2015 judgm ent. However, Duncan did not e xecute his m otion until August 18, 2 01 5 , a n d t h e m otion was not f iled until Septem

ber 8, 2015. W hile the circuit

court held that Duncan both received notice of t he judgm ent and f iled a n otice of appeal on Septem ber 8, 2015, such a h o l d i n g w a s erroneous. T he r ecord i ncludes an envelope postm a rked July 10, 2 015; in his m otion , D u n c a n asserts that this envelope contained the
order inf orm ing him that his PCR m otion had b e e n d e nied. As s u ch, D uncan s hould have
f iled his m otion f

or an out-of

-tim e appeal within seven day s of July 10, 2 015, and his f ailure
to do so renders his m otion untim ely under Rule 4(h). ¶9. Further, D uncan’s a ppeal is barred because, a f t er the circuit court reopened the t im e

4f

or D uncan to f

ile an appeal 4 on October 7, 2015, he did not f ile a notice of appeal within the
allotted f ourteen-day tim e period. Rather, t he record ref lects that Duncan s igned his notice
of appeal 5 on October 26, 2015, and f iled it on Novem

ber 3, 2 015, outside of

the fourteenday tim e period. The f

act t hat Duncan had already f iled a notice o f appeal on Septem ber 8, 2015, is inconsequential because such was untim ely , a nd he had not y e t obtained l eave to f ile
an untim ely appeal. ¶10. In Deloach v. State , 890 So. 2d 8 52, 854 (¶11) ( Miss. 2004), our M ississippi Suprem e Court reiterated the prem ise that [ w]hether a t rial court has authority to rem edy t he f ailure to f ile tim ely a notice af ter the tim e set b y the r

ules f or f iling a notice of a p p e a l h a d expired is do ubtf u l. Coleman v. State , 804 So. 2d 1032, 1037 [ (¶22)] ( Miss. 2002). However, [ appellate c ourts] m ay grant a n out-of

- tim e appeal “where a person is co n v i c t e d of a crim e and through no f ault of h is own is ef

f ectively denied his right t o perf

ect his appeal within the t im e prescribed by law b y the a cts of his attorney or the trial court.” Jones v. State , 355 So. 2d 89, 90 (Miss. 1978). [ A p pellate courts] m ay suspend R ules 2 and 4 “when justice dem ands” t o allow an out-of

-tim e appeal in crim inal c ases. Fair v. S t a t e , 5 7 1 So. 2d 965, 966 (Miss. 1990). (Quoting McGruder v. State , 8 86 So. 2d 1, 2 (¶4) (Miss. 2003)). There is no evidence in the
record to suggest that Duncan was aware of the d isposition of his PCR m otion prior to July 10, 2015, and he cannot be f aulted f or n ot perf

e cti n g h i s a

ppeal within t hirty day s of the
March 6, 2 015 decision, as r equired b y our r ules. However, Duncan was n ot without f ault,

4 A s w e d iscu s s l ater in th is o p in io n , th e circu it co u rt d i d n o t h av e th e au th o rity to allo w an o u t -o f

-tim e ap p eal.

5 T h ere w a s n o d ate o n th e actu a l n o tice o f ap p eal itself

. H o w ev er, th e n o tice o f ap p eal w a s p a g e o n e o f tw o
. D u n can sig n ed t h e s eco n d p ag e— a “ D e sig n atio n o f R e co rd s”— an d d ated i t O cto b er 2 6 , 2 0 1 5

. A s s u ch , w e d ed u c e th at D u n can sig n ed th e n o tice o f ap p eal o n O cto b er 2 6 , 2 0 1 5

. 5as h e did not pursue a rem edy within the tim e constraints of our appellate rules. He was not

only untim ely in f

iling his m otion f

or an out-of

-tim e a ppeal, b ut also untim ely i n perf ecting
his appeal af

ter the trial court g r a n t e d h i m the right to c o m m ence an out-of

- tim e appeal.
W h ile the trial court was without authority , p ursuant to the provisions of Rule 4(h), to reopen the tim e f o r the appeal because Duncan’s m otion was f iled m ore th a n s e v e n day s af ter he

rec e i v e d a copy of the order d eny ing his PCR m otion, we m ay , pursuant to Rule 2 of the Mississippi Rules o f Appellate Procedure, grant s uc h a r i g h t f or good cause shown. However, based upon the f acts h ere, w e d o not f

ind that justice dem a nds that we allow
Duncan’s out-of

-tim e appeal. Accordingly , we dism iss this appeal f or lack of jurisdiction. ¶11. APPEAL DISMISSED.
L E E , C
. J . , G R I F F I S , P . J . , B A R N E S , C A R

L T O N, FAIR, WILSON , G R E E N L E E AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

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