IN THE SUPREME COURT OF MISSISSIPPI N O. 2015-CT-01142-SCT WINFRED FORKNER

v. STATE OF MISSISSIPPI ON WRIT OF CERTIORARI DATE OF JUDGMENT: 02/25/2015 TRIAL JUDGE: HON. LILLIE BLACKMON SANDERS TRIAL COURT ATTORNEY: W I NFRED FORKNER (PRO SE) COURT FROM W HICH APPEALED: W I LKINSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W I NFRED FORKNER (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE W ILKINSON COUNTY CIRCUIT COURT IS VACATED - 08/31/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. KITCHENS, JUSTICE, FOR THE COURT: ¶1. This Court has granted W inf red Forkn e r ’ s p e t i t i on f

or certiorari f

or t he purpose of correcting the erroneous disposition of his appeal by t he Mississippi Court of Appeals. Years af ter his direct appeal was af f irm ed by the Court of Appeals, Forkner f iled a m otion f

or postconviction relief in the Circuit Court of W ilkins o n County

. The circuit court denied the

m otion as untim ely

. Forkner appealed, and the C ourt of Appeals f ound t hat the circuit court

was without authority to adjudicate the appeal because Forkner had not obtained the requiredperm ission f rom t his Court to f

i le his m otion f

or post-conviction relief

in the circuit court. See M iss. Code Ann. 9 9-39-7 ( Rev. 2015). The Court of Appeals also held, erroneously , that the c ircuit court’s lack of authority to entertain the m otion deprived the Court of Appeals of jurisdiction over the appeal. Thereupon, the C o u r t of A ppeals dism issed the a ppeal, thus allowing the circuit court’s erroneous judgm ent to stand. ¶2. Because the C ourt of Appeals did have jurisdiction to consider the l awf ulness of the circuit c ourt’s judgm ent, it e rroneously dism issed Forkner’s appeal. Theref o re, we reverse the judgm ent of the Court of Appeals. Because the circuit court lacked authority to entertain Forkner’s m otion, a s the Court of Appeals rightly determ ined, we vacate t he circuit court’s judgm ent. DISCUSSION ¶3. On February 26, 2001, a W ilkinson C o unty jury convicted W inf r e d F o r kner of

the crim e of burglary of a storehouse. See Miss. C ode A nn. § 97-17-33 (Rev. 2014). The Circuit Court o f W ilkinson County sentenced him as a n habitual of f ender t o l i f

e without the possibility of parole. See Miss. Code A nn. § 99-19-83 (Rev. 2015). Forkner a p pealed, and this Court assigned his appeal t o t he Court of Appeals, w hich af f irme d h is conviction and

sentence. See Forkner v. State , 902 So. 2d 615, 626 (Miss. Ct. App. 2004). W ithin a fivey ear period, Forkner f

iled three separate applications f or p erm i ssion to f

ile a m otion f

or postconviction r elief in the trial court. See Mi ss. Code A nn.§ 99-39-7. This Court denied Forkner’s f

irst m otion a n d dism issed his second and third m o tions as procedurally barred.

2Forkner never obtained perm ission f rom this Court to f

ile a m otion f

or post-conviction relief in the circuit court. ¶4. On January 9, 2014, F o r k n e r f i l e d a d o cum ent entitled “Motion Pursuant to Rule 60(b)(4), (6) o f the Mississippi Rules of C i vil Procedure” i n the Circuit Court of W ilkinson County

. T he c i r c u i t c o u r t f ound t hat this m o tion, in which Forkner s ought relief f rom his conviction and s entence f or burglary of a storehouse, was in t he nature of a m otion f or postconviction relief

. See Miss. C ode Ann. § 99-39-5(1) ( R e v . 2015). The circuit court determ ined that the m otion w as procedurally barred because it was f iled outside the threey ear lim itation period provided by the Unif orm Post-Conviction Collateral Relief Act (UPCCRA). Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Theref ore, t he circuit c ourt denied the m otion. ¶5. F o rkner appealed, and this Court assigned the c ase to the Court of Ap p e a l s , w h i c h f ound t h a t the circuit c ourt had lacked authority to entertain F orkner’s m otion. Forkner v. State , 2016 W L 4376520, at *2 ( Miss. Ct. App. Aug. 16, 2016). The Court of Appeals f ound

t hat the circuit c ourt correctly had deem ed Forkner’s f i ling a m otion f

or post-co n v i c t i o n relief

. Id. The Court o f Appeals noted that, under S ection 9 9-39-7 of the UPCCRA, when a petit i o n e r h a s appealed and the conviction and sentence have been af f irm ed, “the m otion under this article shall not be f iled in t he trial c o u r t until the m o tion shall have f irst been presented to a q

u orum o f the Justices of t he Suprem e Court

. . . and an order g ranted allowing the f iling of such m otion in the trial court.” Miss. Code Ann. § 99-39-7 (Rev. 2015). Id. at

3*1. Thus, the C ourt of Appeals f ound that Forkner, having t aken a direc t a p p e a l f rom his conviction, was not allowed to seek post-conviction relief in the c i rcu i t c o u r t w ithout f irst having been granted perm ission t o d o so by this Court. Id. at *2. Because Forkner had not obtained p erm ission to f

ile a m otion f

or post-conviction relief in the c ircuit c ourt, the Court of Appeals correctly determ ined that the circuit court had lacked authority to a djudicate Forkner’s m otion. Id. ¶6. But the Court of A ppeals went on to conclude that, because the circuit court had no authority to c onsider F orkner’s m otion, “we l ack jurisdiction over his appeal.” Id. Due to the Court of A ppeals’ p erceived lack of j urisdiction, it dism issed the appeal. I d . The Court of Appeals correctly f

ound that, because Forkner had f i led h is m otion in the wrong c o u r t , neither i t nor the c ircuit court had authority t o adjudicate the m erits of the m otion. But the Court o f Appeals incorrectly f ound that it lacked jurisdiction to determ ine whether the circuit

court had authority t o entertain the m o tion. A f inal judgm ent f

rom which a tim ely notice of appeal was f

iled conf ers jurisdiction upon an appellate court to determ i ne whether the circuit court’s disposition was lawf ul. M.R.A.P. 4(a). Thus, the Court of Appeals had jurisdiction to determ ine whether the circuit court’s disposition of Forkner’s m otion was lawf ul, and it erred by f a iling to recognize its jurisdiction. Accordingly , th e C o u rt of A ppeals’ dism issal of t he appeal f

o r lack of appellate jurisdiction was erroneous. B ecause the Court of Appeals had jurisdiction to consider Forkner’s appeal, it should have vacated the order o f the circuit

court that erroneously adjudicated his m otion f or post-conviction reli e f w i t h out authority

.

4Theref

ore, w e r everse the judgm ent of the Court of Appeals a n d vacate the o rder of the W i lkinson County

Circuit Court. ¶7. T H E JUDGMENT OF THE COURT OF APPEAL S I S R E V E R S E D . T H E JUDGMENT OF THE WILKINSON COUNTY CIRCUIT COURT IS VACATED. WALLER, C.J., DICKINSON AND R A N D O LPH, P.JJ., K ING, COLEMAN, MAX W ELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

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