Opinion
No. 41764.
February 6, 1961.
1. Criminal law — courts — jurisdiction — court without jurisdiction to entertain motion for withdrawal of plea of guilty after adjournment of regular term.
Headnote as approved by Gillespie, J.
APPEAL from the Circuit Court of Marion County; SEBE DALE, Judge.
Philip Singley, Roy J. Goss, Columbia, for appellant.
I. The motion of the appellant is a strong one and presents ample grounds for setting aside the plea of guilty. Daniels v. State, 163 Miss. 245, 140 So. 274; Deloach v. State, 77 Miss. 691, 27 So. 618; Pittman v. State, 198 Miss. 797, 23 So.2d 685.
II. The motion of the appellant to withdraw his plea of guilty was filed within a reasonable time and, therefore, should have been heard on the merits thereof and not dismissed because filed untimely. Miles v. Monaghan, 211 Miss. 150, 51 So.2d 212; Perciful v. Holly, 217 Miss. 203, 63 So.2d 817; Pittman v. State, supra.
III. The appeal of the appellant from a judgment of conviction on a criminal charge stayed the judgment appealed from and, therefore, the appellant is now being held in the Mississippi State Penitentiary unlawfully. Lang v. State, 230 Miss. 147, 89 So.2d 837; Secs. 1175, 2540, 2544, Code 1942. G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The trial court was correct in dismissing the motion of appellant filed after the adjournment of the regular term of court. Carter v. State, 147 Miss. 171, 113 So. 177; McDonald v. State, 151 Miss. 566, 118 So. 628; National Casualty Co. v. Calhoun, 219 Miss. 9, 67 So.2d 908; Perciful v. Holley, 217 Miss. 203, 63 So.2d 817; Pittman v. State, 147 Miss. 593, 113 So. 348; Stafford v. State (Miss.), 55 So.2d 477; Turner v. State, 121 Miss. 68, 83 So. 404; 30 Mississippi Law Journal (No. 4), Judge M.M. McGowan's article p. 438.
II. The appeal of appellant in this case did not stay the judgment of conviction and sentence and appellant is properly confined in the Mississippi State Penitentiary. Ex parte Willette, 219 Miss. 785, 63 So.2d 52; Lang v. State, 230 Miss. 147, 89 So.2d 837; Secs. 1150, 1180, Code 1942.
(Hn 1) This case is controlled by the decision this day rendered in No. 41,763, Desolee Thornhill v. State of Mississippi.
Appeal dismissed.
McGehee, C.J., and Kyle, Ethridge and McElroy, JJ., concur.