IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00861-COA JOSHUA ALLEN A/K/A JOSHUA F. ALLEN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/29/2015 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ERIN ELIZABETH PRIDGEN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - MISDEMEANOR TRIAL COURT DISPOSITION: CONVICTED OF ONE COUNT OF ARMEDROBBERY AND SENTENCED TO THIRTYFIVE YEARS AND ONE COUNT OF CONSPIRACY TO COMMIT ARMED ROBBERY AND SENTENCED TO FIVE YEARS, TO RUN CONCURRENTLY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 09/20/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND ISHEE, JJ. LEE, C.J., FOR THE COURT:

FACTS AND PROCEDURAL HISTORY¶1. On March 3, 2015, 1 Joshua Allen was c o nvicted of one count of

arm e d robbery

and

one c ount of c onspiracy to comm it arm ed robbery

. He was sentenced, on May 1, 2015, 2 to thirty -f i ve y ears f

or the a rm ed-robbery conviction a n d f i ve y ears f

or the conspiracy convict i o n , t o b e served concurrently , i n the custody of the Mississippi Departm ent of Corrections. On May 7, 201 5 , A l l e n f iled a m otion f

or a new trial or, in the alternative, a judgm ent notwithstanding the verdict (JNOV), w hich was denied. Allen appeals, asserting his verdict was against the overwhelm ing weight of the evidence.
DISCUSSION ¶2. “[ Unif

o rm Rule of Circuit and County Court] 10.05 r equires that a m ot i o n f o r new trial m ust be m ade within ten d a y s of the judgm ent, and in the case of a m otion f

o r JNOV, the m otion m

ust be m ade either within the ten day s or by the end of the t erm of court.” W ells

v. S tate , 73 So. 3d 1203, 1206 (¶7) (Miss. Ct. App. 2011) (quoting Ross v. State , 16 So. 3d 47, 53 (¶7) (Miss. Ct. App. 2009)). A llen’s j udgm ent of conviction was f iled on March 3,
2015. So to be tim ely , Allen’s m otion f or a new trial w ould have to have been f iled within

t e n day s of that date. See Conwill v. State , 168 So. 3d 1080, 1 084 (¶19) (Miss

. C t

. A p p . 2013). Instead it was not f iled until May

7, 2015. 3 ¶3. Furtherm ore, “[ t]he contention that the verdict is a gainst the overwhelm i ng weight of

1 T h e f in al j u d g m en t o f co n v ictio n w a s sig n e d o n M a rch 2 , 2 0 1 5 , an d en tered o n M arch 3 , 2 0 1 5

.

2 T h e sen ten cin g o rd e r w as sig n ed o n A p ril 2 9 , 2 0 1 5 , an d en tered o n M ay 1 , 2 0 1 5

. 3 We n o te th a t th e m o tio n w as also f iled o u tsid e o f

th e term o f c o u rt, as th e term

o f th e R an k in C o u n ty

C ircu it C o u rt b eg an o n th e f irst M o n d ay o f F eb ru ary

an d ran f o r th irty d ay s . S e e S tate o f

M i ssissip p i Ju d iciary

D irecto r y an d C o u rt C alen d ar (2 0 1 5 )

. 2the evidence m ust f irst be raised in the def

endant’s m otion f

or a new trial.” H

unter v. State , 187 So. 3d 674, 678 ( ¶13) (Miss. Ct. App. 2016) ( quoting Beckum v. State , 917 S o. 2d 808,
813 (¶14) (Miss

. C t. App. 2005)). “A claim that the v erdict was against the weight of the evidence m

ust be f irst presented to the trial c ourt since that court i s best positioned to m ake an inf orm ed decision as t o such issue, having had the benef it of hearing the evidence f

irsthand.” I d. (quoting Collins v. State , 858 So. 2d 217, 218-19 ( ¶ 5 ) ( M i s s . Ct. App. 2003)). Although Allen f

iled a m otion f

o r a new trial, the basis f

or his m otion w as “procedural and substantive errors comm itted during the trial

. . . .” W e b elieve the f oregoing language is insuf f icient to preserve the weight-of -the-evidence issue f

or appeal. Cf. W

ilson v. State , 904
So. 2d 987, 995 ( ¶24) (Miss. 2004). For these r easons, the c ircuit court did n ot err i n deny ing Allen’s m otion. ¶4. THE JUDGMENT OF THE CIRCUIT COURT OF RAN K I N C O U N T Y O F CONVICTION O F ONE C OUNT OF ARMED R OBBERY AND SENTEN C E OF THIRTY-FIVE YEARS, AND CONVICTION OF ONE COUNT O F C ONSPIRACY TO COMMIT ARMED ROBBERY AND SENTENCE O F F I V E YEARS, T O RUN CONCURRENTLY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY. GRIFFIS, P.J., BARNES, ISHEE, C ARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR. I R V I N G , P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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