IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-CP-01610-COA
JOE S. CANE A/K/A JOE CANE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/03/2014 TRIAL JUDGE: HON. LEE J. HOW ARD COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JOE S. CANE (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED APPELLANT’S MOTION FOR POST-CONVICTION RELIEF DISPOSITION: APPEAL DISMISSED – 12/13/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. IRVING, P.J., FOR THE COURT: ¶1. Joe Cane appeals t he judgm ent of the Oktibbeha County Circuit Court d ism issing his

m otion f or post-conviction relief (PCR), which waged a collateral attack on his convictions
f or sexual battery and explo i t a t ion of a child. On appeal, Cane raises several interrelated issues, including ( 1) whether the circuit c ourt erred in ref using t o consider the m inor an adult, and thus capable o f consent, and (2) whether the circuit court erred in f i nding that Cane was in a posit i o n o f t r

ust over the m inor. Finding C ane’s notice of appeal to b e untim ely , we dism iss his appeal f

or lack of jurisdiction.

FACTS¶2. On March 23, 2009, Nina Cane c o n t a c t e d D e p u t y Brett W atson of the Oktibbeha

C o u n t y S herif

f ’ s Departm ent and alleged that h er estranged husband, C ane, had nude photographs of the Canes’ m inor niece (the m inor) on his cell phone. T he m inor, who was
seventeen y ears old at the t im e , had lived w ith the C anes af ter her r elocation f

rom Pennsy lvania. Nina inf

o rm ed Deputy W atson that she s uspected t hat Cane and the m inor had engaged in s exual r e lations while the m inor was living at t he Canes’ h om e. In his af f idavit, Deputy W atson stated that C ane and N i n a w e r e guardians of the m i nor, a f act that Cane disputes. On March 24, 2 009, Deputy W atson interviewed t he m inor, w ho adm itted both that she was the subject of

nude photographs on Cane’s cell phone a n d that she had engaged in sexual activity

with Cane. Cane was subsequently arrested f

or sexual battery

. ¶3. On July 15, 2 009, an O ktibbeha C ounty g rand jury indicted Cane pursuant to Mississippi Code A nnotated sections 9 7- 3

- 9 5 ( Rev. 2014) and 97-5-33 (Rev. 2014), respectively , f

or two counts of

sexual battery and one count of possessing a photograph of a child engaged in sexually explicit conduct. On February 1, 2010, C ane pleaded guilty in Oktibbeha County Circuit C ourt to one count of sexual battery 1 a n d o ne c ount of exploitation of a child. The circuit court sentenced Cane to s erve two c oncurrent eight-y ear s entences in the custody of the Mississippi Departm ent of C orrections, f ollowed by a f

ive-y ear period of post-release supervision. ¶4. On August 11, 2011, Cane, acting pro se, f iled his f i rst petit i o n f

o r p o st-conviction

1 O n e co u n t o f

sex u al b attery

w a s retired to th e f

iles. 2relief (PCR), alleging that t he State had violated his rights u nder the F irst, Fif th, Eighth, and Fourteenth A m e ndm ents. Cane v
. State , 109 So. 3d 568, 570 (¶4) (Miss. Ct. App. 2012). Specif ically , Cane argued: (1) his guilty p lea was not entered intelligently and voluntarily ; (2) the f acts were i nsuf

f icient to convict him of sexual battery and c hild exploitation; (3) he

was deprived of ef

f ective assistance of counsel; and (4) he was d eprived of h i s r ight t o a speedy trial. Id

. at (¶5). The circuit court sum m arily den i e d Cane’s petition, and he appealed. Id . at (¶4). This Court af f irm ed the circuit court’s denial. Id . at 571 (¶17). ¶5. On April 24, 2013, C ane, acting pro se, f iled a “ W rit of Error Coram N obis” 2 —which the circuit court treated as a second PCR petition—alleging that b ecause t he seventeen-y earold m inor was em a ncipated, she should h ave b een considered an adult and, theref ore, legally capable of

consent. Cane also argued that he was not in a position of trust over the m inor.
On June 3 , 2014, t he circuit court dism issed Cane’s petition, f inding i t to be a subsequent and
f rivolous m otion. Cane did not receive notice of the c ircuit c ourt’s judgm ent until June 19, 2014, at the correctional f acility where Cane was b eing held. Cane f iled a m otion f

or reconsideration on June 2 6, 2014, which was received b y the c ircuit clerk on June 30, 2014.
In h is m otion f

or r econsideration, Cane alleged t hat newly changed l aw—Mississippi Code

2 Writs o f erro r co ram n o b is w ere h i sto rically “u sed t o raise issu es o f f act th at af f ected th e v alid ity o f a j u d g m en t b u t w h ich w ere u n k n o w n u n til af ter a j u d g m en t w as en tered .” H e s t e r v
. S t a te , 7 4 9 S o
. 2 d 1 2 2 1 , 1 2 2 3 ( ¶1 1 ) (M iss. C t. A p p
. 1 9 9 9 ). E n actm en t o f M ississip p i C o d e A n n o tated sectio n 9 9 -3 9 -3 (R ev
. 2 0 1 5 ) ab o lish e d w rits o f erro r co r am n o b is; sectio n 9 9 -3 9 -3 (1 ) p ro v id es th at “[ t] h e relief f o rm erly acco rd ed b y su ch w rits m ay b e o b tain ed b y an a

p p ro p riate mo t io n u n d er [ th e U n if o rm P o st-C o n v ictio n C o llateral R elief A c t] .” 3Annotated section 47-7-2 (Rev. 2015)—classi f ies a seventeen-y ear-old as an adult and retroactively voids his conviction; additionally , C a ne reasserted that he was not i n a position of t rust over t h e m i nor. The circuit court dism issed Cane’s m otion f o r reconsideration on August 7, 2014. ¶6. On August 2 5, 2014, Cane f iled a n o t i c e o f appeal regarding his dism issed W rit of
Error Coram Nobis, w hich had been d i sm issed by the c ircuit court o n June 3, 2014. On October 13, 2014, Cane f iled a “Petition f

or Constitutional Challenge,” which th e circuit

court dism issed on October 31, 2014. Cane d id not f ile a notice of appeal f

r om the dism issal of his Petition f

or Constitutional Challenge. However, in his appellate brief , Cane addresses each decision of

the circuit court that denied him the relief that he requested.
DISCUSSION ¶7. “This Court m

ust have jurisdiction to consider this appeal.” Vance v. S tate , 941 So. 2d 225, 227 (¶5) (Miss. Ct. App. 2006). “Regardless of whether the parties raise j urisdiction, the Court is required to n ote its own lack of jurisdiction, and if the notice o f appeal is not tim ely f iled, the a ppellate court sim

ply does not have j urisdiction.” Bailey v
. Chamblee , 192
So. 3d 1078, 1081-82 (¶11) (Miss. Ct. App. 2016) (citations om i tted). Here, neither of the parties discusses t he tim eliness of Cane’s notice of appeal; however, we are required to note when an untim ely

appeal precludes us f

rom having jurisdiction to hear the appeal. ¶8. Cane f

i led his W rit of Error Coram Nobis on A pril 24, 2013. The t rial court dism issed
it on J u n e 3 , 2 0 1 4

. Rather than f iling a n otice of appeal af t er receiving t he notice of

4judgm ent on June 19, 2014, dism i ssing his writ, Cane f iled a m o tion f

or reconsideration on June 2 6, 2014, which was d i sm issed by the circuit court on August 7, 2014. On August 25, 2014, Cane f

iled his notice of appe a l r e g a r d i n g the June 3 , 2014 d ism issal of his W rit of
Error Coram Nobis. Rule 4(a) of the Mississippi R ules o f Appellate Procedure requires that

a n otice of appeal be f

iled with the trial c ourt within t hirty day s o f the entry of j udgm ent f rom which the appeal stem s. Rule 2(a ) ( 1) of the Mississippi Rules of Appellate Procedure

m andates that “[ a]n appeal shall be dism issed if t he notice of appeal was n ot tim ely f iled pursuant to Rules 4 or 5.” As Cane f iled h is notice of appeal m ore than thirty day s af ter the judgm en t w a s e n t ered o n June 3, 2014, his n otice of appeal was untim e ly , and this appeal

m ust be dism i s sed unless C ane is af f orded som e avenue o f relief through other Mississippi rules or case law. ¶9. Of note i s the f

act that Cane did not r e c e i ve notice o f the order d ism issing his PCR

m otion u ntil June 19, 201 4

— s i x t e e n day s af t er t he order w as e n tered. Rule 7 7(d) of the Mississippi Rules of Civil Procedure provides: “Im m ediately upon the entry

of an order or judgm ent[ ,] the clerk shall serve a notice of the entry in the m anner provided f or in Rule 5
upon e ach p arty who i s not in d ef ault f or f ailure to a

p pear, and shall ma ke a n ote in the d o c k et of the service.” However, the “[ l]ack of notice of the entry b y the clerk does n o t af f ect the tim e to a

ppeal, nor r elieve, nor authorize t he court to relieve, a party f or f ailure to appeal within the tim e allowed, excep t as perm itted by the Mississippi Rules of A ppellate Procedure.” Id

.

5¶10. “Mississippi Rule of Appellate Procedure 4(d) provides a l i t a n y o f ‘post trial’ m otions which, if tim ely f

iled, w i l l t o l l t h e tim e f

or [ f iling] a [ n]otice of [ a]ppeal.” Byrd v. Biloxi
R e g ’ l M ed. Ctr. , 7 22 So. 2d 166, 169 (¶12) (Miss. Ct. A pp. 1998). A m otion f o r reconsideration—although t echni c a l l y not recognized by t he M ississippi Rules of Civil Procedure—m ay toll the tim e f or f iling a notice of appeal if

it is f iled within ten day s f

rom the entry of the judgm ent sought to be am ended. McBride v. McBride , 110 S o. 3d 356, 359 (¶15) (Miss. Ct. App. 2013). Under s uch circum stances, the m otion would be considered a

m otion to alter or am end the judgm e n t u n d er R ule 59 of the Mississippi Rules of Civil Procedure. McBride , 1 10 So. 3d at 359 (¶15). “But a m otion t o reconsider f iled m ore than ten day s af

ter the entry

of the j udgm ent f

alls under Rule 60(b) [ of

the Mississippi Rules of Civil Procedure]. And a Rule 60(b) m otion does not toll the thirty -day tim e period to f ile a notice of appeal.” M

cBride , 110 So. 3d at 360 (¶15) (quoting W oods v. V ictory Mktg., LLC , 111 So. 3 d 1234, 1236 (¶¶6-8) (Miss. Ct. A pp. 2013)). As Cane’s m otion f or reconsideration

was f iled m o re t han ten day s af ter entry of the judgm ent dism issing h is PCR m otion, it m ust be deem ed a Rule 60(b) m o tion, which, as stated, does not toll the thirty -day tim e period f or taking an appeal. ¶11. Nor does Rule 4(h) of t he Mississippi Rules of Appellate Procedure of

f er Cane any relief

. “If a party does not receive notice o f a court o rder o r receives notice so late it im pairs the opportunity to f

ile a tim ely notice o f appeal, that party m ay seek relief under R ule 4(h).”
Cuevas v. Ladner , 86 So. 3d 936, 938 (¶7) ( Miss. Ct. App. 2012) (citations om itted). Rule

64(h) provides:

T h e t rial court, if it f

inds (a) that a party e ntitled to notice of the entry o f a judgm ent or orde r d i d n o t receive such n otice f rom the clerk or any p arty within 21 day s o f i t s e n t r y and (b) that no party would be prejudiced, m ay , upon m otion f

iled w ithin 180 day s of entry of the judgm e nt or order or within 7 day s of receipt o f such notice, whichever is e a r l i e r , 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.
Ru l e 4 ( h ) i s inapplicable to t he m atter at hand because Cane received notice of the order dism issing his PCR m otion within twenty -one day s of its entry

. ¶12. Sim ilarly , Rule 4 ( g ) of the Mississippi Rules of A ppellate Procedure “provides a potential rem edy

f or appellants who, f

or whatever reason, do not tim ely f ile their notice of appeal b ecause Rule 4 (g) em powers the trial court t o extend the tim e to appeal f r om the trial court’s ruling upon a showing of excusable neglect.” Byrd , 722 So. 2d at 170 (¶15). Rule 4(g) states: The trial court m ay

extend the tim e f

or f iling a notice of a

p peal upon m otion f iled not later than 30 day s af ter the expiration of the tim e otherwise prescribed by this rule. A ny such m otion w h i c h i s f iled bef ore expiration of the prescribed tim e m ay b e granted f or good cause and m ay be e x parte unless the cour t o t h e r w i se requires. Notice of any s uch m otion which is f iled af ter expiration of t he p rescribed tim e shall b e given to other parties, and the m otion shall be granted only upon a showing of excusable neglect. N o such extension shall exceed 30 day s p a s t s u c h p rescribed tim e or 10 day s f rom the date of entry of the order granting the m otion, whichever occurs later. However, Rule 4 (g) is a lso i napplicable to Cane’s case because Cane never f i led a m otion
f or an extension of

tim e to f i le his notice of

appeal. ¶13. The o nly other potential source of relief f or Cane is Rule 2(c) of Mississippi Rules of

7Appellate Procedure, which provides:

In th e i n t e r e s t of expediting decision, or f o r other good cause shown, the Suprem e Court or the Court of Appeals m a y suspend the r e q uirem ents or provisions of any of these rules i n a particular c ase on application of a party or on its own m otion and m ay order proceedings in accordance with its direction; provided, however, in c ivil cases the tim e f or taking an appeal a s provided in Rules 4 or 5 m ay not be extended.
A com m ent to Rule 2(c) states that “because procedures f or c rim i nal a

ppeals apply to postconviction relief proceedings, Miss. Code Ann. § 99-39-25[ (1)]; 3 W illiams v. State , 456 So. 2d 1042, 1 043 (Miss. 1 984), the S uprem e Court m ay suspend the rules and extend the t im e f or taking an appeal in those proceedings.” M .R.A.P. 2(c) cm t. Likewise , this Court held
in Vance , 941 So. 2d at 227 (¶6), t hat the Court o f Appeals “m ay s uspend t he requirem ents of the a p pellate rules”—specif

ically , Rule 4 (a)—to allow an out-of -tim e appeal in p o s tconviction-relief proceedings where doing s o would be “in the interest of justice.” (Citations

om itted). T h u s, th e q u e stio n w e m u st ad d ress i s w h eth e r it is in th e in terest o f j u stice f o r u s
to ex ercise o u r au th o rity

u n d er R u le 2 (c) to su sp en d R u le 4 (a) an d allo w C an e’s ap p eal to b e h eard

. ¶14. As stated, C ane suf f ered a sixteen-day delay i n receiving notice of the order dism issing his m otion f

or reconsideration. This Court a ddressed a sim ilar delay in Davis v. State , 36 So. 3d 456, 4 5 9

- 6 0 ( ¶ 1 1 ) (Miss. Ct. App. 2010). In Davis , the circuit court

3 M ississip p i Code A nnot a t e d s e c t i on 9 9- 39- 2 5( 1) ( R ev
. 2 0 1 5 ) p ro v id es th at “[ a] f i n al j u d g m en t u n d e r th is article m ay b e rev iew ed b y th e [ S ] u p rem e [ C ] o u rt o f M i s s issip p i o n ap p eal b ro u g h t eith er b y th e p riso n er o r th e [ S ] tate o n s u c h t e r ms an d co n d itio n s as are p ro v id ed f

o r in crim in al cases.” 8dism issed appellant George D avis’s m otion f or a n out-of

-tim e appeal o n January 11, 2007. Id

. Apparently , Davis did not learn that his mo t ion had been d enied u ntil March 5, 2007, when the clerk of

the Mississippi Suprem e Court sent a letter to Davis, inf orm ing him that the circuit court had denied hi s mo t i o n f or an out-of

-tim e appeal. Id

. On March 20, 2007—f if teen d ay s af

t er receiving the letter f

rom the suprem e-cou r t clerk—Davis f iled a notice of a

ppeal with the circuit court regarding the January 11, 2007 order. Id

. This Court
f ound that, although Davis’s n otice of appeal w as untim ely f iled, a s it was f

iled m ore than thirty day s af

ter January 1 1, 2007, the record indicated that he “m a y n ot have been aware of the e n t r y of the circuit court’s judgm e nt on J anuary 1 1,” and that it was “in the interest of justice” to hear his a

ppeal b ecause “f

ailure to perf

ect the appeal was through n o f ault of his
own.” Id . at (¶¶9, 11) (quotation m arks om itted) (quoting Parker v. State , 921 So. 2d 397,
399 (¶5) ( Miss. Ct. App. 2006)). Consequently , pursuant t o R ule 2(c), w e s u s p e n ded the thirty -day f

iling requirem ent and a llowed Davis’s appeal to proceed even t hough t he notice of appeal was not tim ely

f iled. Davis , 36 So. 3d at 459-60 (¶11). ¶15. Here, Cane f

iled his notice of appeal n early thr e e mo nths af ter the d ate o n which judgm ent was entered f

rom which he s ought t o a p p e a l

. It appears that Cane m istakenly b e l i e v e d h e had t hirty day s f rom the denial of his m otion f or reconsideration on August 7 , 2014, to f

ile h i s n o t i c e o f a

ppeal. This case is sim i lar to Davis in that like Davis, Cane belatedly received notice of the order f rom which he sought t o appeal. However, unlike Davis, Cane did not f

ile a notice of

appeal within thirty

day s of the date h e received notice

9that a n o rder had been entered deny ing his P CR m otion. C a ne still had f o urteen day s—f

rom June 19, 2014, the date on which he r eceived notice t hat his PCR m otion had been denied,

to July 3, 2014—in which he could f ile a tim ely not i c e o f appeal. As Cane waited an additional thirty -three day s to f ile his notice o f a p peal—and there are no extraordinary circum stances—we decline to f ind that it is “in t he interest o f justice” to s uspend the thirty

day requirem ent in t his case. This is particularly true here, where the PCR m otion in dispute is t he second that Cane has f iled, and Cane is asserting the sam e substantive i s s u e s in this
PCR m otion a s he asserted in his f irst one, albeit packaged dif f erently

. T heref

ore, we m ust dism iss Cane’s appeal as untim ely

. ¶16. THIS APPEAL IS DISMISSED . ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.
L E E , C . J . , G R I F F I S , P.J., BARNES, ISHEE, CARLTON, FAIR, W I L S O N A N D GREENLEE, JJ., CONCUR. JAMES, J., C ONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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