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Spencer v. State8/26/2004
of the cost bond, Riley never filed an appearance bond. A document styled as a supersedeas bond is found among the court papers, but that document is not approved by any official associated with either the circuit or municipal court. Moreover, this bond was also filed late, as it was also filed on April 21, 1998, approximately thirty days past the appeal period. Further, the contents of the document indicate that it is really a cost bond, not an appearance bond.
On these facts, two conclusions are inescapable. First, Riley's appeal was not timely perfected, for the rule provides that the appeal is not perfected until two things occur: the filing of a written notice of appeal and a cost bond. Both of these filings are to be done within thirty days of the judgment from which the appeal is taken. Here, the written notice of appeal was filed within the thirty days permitted by the rule, but the cost bond was not filed until approximately sixty days after the municipal court judgment was entered. Therefore, it was not timely. Second, it is not debatable that an appearance bond was never filed. The rule provides that the failure to post any bond required by this rule shall be grounds for the court, on its own motion or by motion of another to dismiss the appeal with prejudice.
Therefore, since Riley failed to post one of the requisite bonds, the trial court, in its discretion, was empowered to dismiss the appeal on its own motion or by the motion of another. Here it was the clerk of the court, traveling in a civil procedure vehicle and invoking a different basis than that provided for in Rule 12.02, who asked that the appeal be dismissed. The trial court, embracing the message contained in the clerk's invocation, utilized its discretion and dismissed the appeal. In deciding the appropriateness vel non of the trial judge's action, we look not at the identity of the messenger or the type of procedural vehicle employed by the messenger to deliver the message, but at the totality of the factual circumstances to ascertain whether there is any legal basis which may properly justify the action taken by the trial judge in response to the message.
* * *
We know of no case which permits the filing of the required bonds past the thirty-day appeal time.
*1047 Riley, 856 So.2d at 722-25 (emphasis added). We agree with this analysis.
9. As Spencer was found guilty in the justice court on August 28, 2000, and he did not post bond with the circuit court until January 15, 2003, we find that the circuit court did not err in dismissing Spencer's appeal and remanding the matter to the Justice Court of Yalobusha County for execution of the sentence.
CONCLUSION
10. This Court affirms the judgment of the Circuit Court of Yalobusha County.
11. AFFIRMED.
Page 1 2 Mississippi DUI Attorneys
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