Robert Patrick Terrell v. State of Mississippi , 160 So. 3d 213 ( 2015 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-KA-00157-SCT
ROBERT PATRICK TERRELL a.k.a. ROBERT P.
TERRELL a.k.a. PATRICK TERRELL
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 02/04/2014
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT
COURT
ATTORNEY FOR APPELLANT: J. M. RITCHEY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY: HALDON J. KITTRELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: APPEAL DISMISSED WITHOUT
PREJUDICE - 03/26/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. Robert Terrell was indicted on twenty counts of mail fraud, conspiracy to commit mail
fraud, fraudulent use of identity, conspiracy to commit fraudulent use of identity, timber
theft, conspiracy to commit timber theft, false pretense, and conspiracy to commit false
pretense. Terrell filed six motions to quash, consolidate, or dismiss various counts. The trial
court denied the motions. Terrell appeals, claiming double jeopardy and that the trial court
erred by not staying his trial. The State asserts that Terrell’s appeal is not properly before the
Court. We agree and dismiss for lack of jurisdiction.
Factual Background and Procedural History
¶2. Robert Terrell, Ricardo Hawthorne, and Learchie Nicholson have been charged with
conspiring to defraud and actually defrauding John McLendon out of real property and the
timber on that property. Terrell and his co-indictees allegedly forged McLendon’s name on
fraudulent warranty deeds that conveyed McLendon’s land to Hawthorne, and they mailed
the fraudulent documents across county lines. They are further alleged to have sold the
timber on McLendon’s land for $20,300. In a twenty-count indictment, Terrell was charged
with six counts of mail fraud; six counts of conspiracy to commit mail fraud; one count of
fraudulent use of identity; one count of conspiracy to commit fraudulent use of identity; one
count of timber theft; one count of conspiracy to commit timber theft; two counts of false
pretense; and two counts of conspiracy to commit false pretense.
¶3. Claiming that many charges would result in a double jeopardy violation, Terrell filed
six motions to quash, consolidate, or dismiss various counts. After a hearing, the trial court
denied the motions. At the end of the hearing, Terrell’s counsel indicated his intent to
appeal, and the trial court referenced an interlocutory appeal. Terrell’s counsel interrupted
the court, saying he considered the court’s ruling to be a final judgment on the double
jeopardy claim and that the appeal would not be interlocutory. Terrell filed a notice of appeal
the following day.
Discussion
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¶4. Terrell asserts that the trial court’s denial of his double jeopardy claims was error. He
also asserts that the trial court erred by refusing to stay his trial pending the instant appeal.
The State maintains that Terrell’s appeal is not properly before the Court.
I. Whether Terrell’s appeal is properly before the Court.
¶5. At his hearing, Terrell’s counsel indicated that he would appeal and stated that he did
not believe the appeal to be interlocutory because the court’s ruling was a final judgment.
Subsequently, he appealed and followed the procedure for a direct appeal. The State
maintains that Terrell’s appeal is not properly before the Court because he failed to comply
with Mississippi Rule of Appellate Procedure 5 for interlocutory appeals.
¶6. Terrell relies on Beckwith v. State, 615 So. 2d 1134 (Miss. 1992), and argues that the
trial court’s denial of his double jeopardy claims was a final judgment. He quotes the
following from Beckwith:
Orders denying motions to dismiss an indictment on double jeopardy . . . are
likewise immediately appealable. . . . Refusals to dismiss an indictment for
violation of the Double Jeopardy Clause . . . are truly final and collateral, and
the asserted rights . . . would be irretrievably lost if review were postponed
until trial is completed.
...
. . . Beckwith’s rights under a double jeopardy claim in this case go beyond his
right not to be convicted, and are of immediate urgency, justifying
determination now. Because of the unique nature of the denial by a circuit
court of a colorable double jeopardy claim, involving as it does the
Constitutional right not to be prosecuted for the offense, it is final.
Beckwith, 615 So. 2d at 1141, 1146 (internal citations omitted). Terrell writes that his
double jeopardy rights “are collateral to and totally independent of his guilt or innocence or
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the conduct of his trial, and are of immediate urgency.” See Beckwith, 615 So. 2d at 1145.
Be that as it may, the appeal is no less interlocutory than any other appeal that arises before
trial or before a final ruling on the issues or charges before the court. Because Terrell is
appealing a pretrial order, it is certainly an interlocutory appeal.
¶7. Terrell’s reliance on Beckwith is misleading. The Beckwith Court held that a ruling
on a defendant’s double jeopardy claims was final and appealable, but such an appeal is still
interlocutory. In fact, the appeal in Beckwith was interlocutory. The principle from
Beckwith that a trial court’s denial of a double jeopardy claim is a final judgment and
immediately appealable has been cited several times. In each case, the denial of the
defendant’s double jeopardy claim was appealed via an interlocutory appeal. See Cox v.
State, 134 So. 3d 712 (Miss. 2014); Kelly v. State, 80 So. 3d 802 (Miss. 2012); Roberson v.
State, 856 So. 2d 532 (Miss. Ct. App. 2003). In Kelly v. State, relying on Beckwith, the
Court specially held that “prejudgment double-jeopardy appeals are reviewed on an
interlocutory basis[.]” Kelly, 80 So. 3d at 804 (¶ 7). See also Griffin v. State, 545 So. 2d
729, 732 (Miss. 1989) (“motions raising issues of double jeopardy warrant interlocutory
review”) (citing Harden v. State, 460 So. 2d 1194, 1200-1201 (Miss. 1984)).
¶8. To appeal an interlocutory order, the party appealing must file “a petition for
permission to appeal with the clerk of the Supreme Court[.]” Miss. R. App. P. 5. “[A]ppeals
from interlocutory orders are not appeals of right[,]” and the party seeking to appeal must ask
the Supreme Court for permission to appeal. Donald v. Reeves Transp. Co. of Calhoun,
Georgia, 538 So. 2d 1191, 1194 (Miss. 1989). Where the Court has not granted permission
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to appeal, we do not have the authority pursuant to our rules to hear the appeal, and neither
the parties nor the lower court can confer the authority to hear it. See id. at 1195. Because
Terrell did not seek permission to appeal pursuant to Rule 5, we decline to consider his
appeal.
II. Whether the trial court erred in refusing to stay the trial.
¶9. Terrell claims that the trial court’s refusal to stay the trial pending his appeal
constitutes reversible error. He repeats his argument that denial of a double jeopardy claim
is a final judgment that is immediately appealable. The State responds that the issue is moot
because the trial court has since continued the case. Had Terrell properly petitioned the
Court for interlocutory appeal, he could have requested a stay of the trial court proceedings.
Regardless, the point is moot because the trial has been continued pending the appeal.
Conclusion
¶10. Terrell failed to comply with Rule 5 of the Mississippi Rules of Appellate Procedure
pertaining to interlocutory appeals. Thus, we dismiss Terrell’s appeal because it is not
properly before the Court.
¶11. THE APPEAL IS DISMISSED WITHOUT PREJUDICE.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
CHANDLER, PIERCE AND KING, JJ., CONCUR.
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