Date: 09-20-2016

Case Style:

Case Number: 2015-KA-00861-COA

Judge: WILLIAM E. CHAPMAN III

Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney:

Michael Guest

Defendant's Attorney:

George T. Holmes

Description: On March 3, 2015,1 Joshua Allen was convicted of one count of armed robbery and
one count of conspiracy to commit armed robbery. He was sentenced, on May 1, 2015,2 to
thirty-five years for the armed-robbery conviction and five years for the conspiracy
conviction, to be served concurrently, in the custody of the Mississippi Department of
Corrections. On May 7, 2015, Allen filed a motion for a new trial or, in the alternative, a
judgment notwithstanding the verdict (JNOV), which was denied. Allen appeals, asserting
his verdict was against the overwhelming weight of the evidence.
DISCUSSION
¶2. “[Uniform Rule of Circuit and County Court] 10.05 requires that a motion for new
trial must be made within ten days of the judgment, and in the case of a motion for JNOV,
the motion must be made either within the ten days or by the end of the term of court.” Wells
v. State, 73 So. 3d 1203, 1206 (¶7) (Miss. Ct. App. 2011) (quoting Ross v. State, 16 So. 3d
47, 53 (¶7) (Miss. Ct. App. 2009)). Allen’s judgment of conviction was filed on March 3,
2015. So to be timely, Allen’s motion for a new trial would have to have been filed within
ten days of that date. See Conwill v. State, 168 So. 3d 1080, 1084 (¶19) (Miss. Ct. App.
2013). Instead it was not filed until May 7, 2015.3
¶3. Furthermore, “[t]he contention that the verdict is against the overwhelming weight of
1 The final judgment of conviction was signed on March 2, 2015, and entered on March 3, 2015. 2 The sentencing order was signed on April 29, 2015, and entered on May 1, 2015. 3 We note that the motion was also filed outside of the term of court, as the term of the Rankin County Circuit Court began on the first Monday of February and ran for thirty days. See State of Mississippi Judiciary Directory and Court Calendar (2015). 2
the evidence must first be raised in the defendant’s motion for a new trial.” Hunter v. State,
187 So. 3d 674, 678 (¶13) (Miss. Ct. App. 2016) (quoting Beckum v. State, 917 So. 2d 808,
813 (¶14) (Miss. Ct. App. 2005)). “A claim that the verdict was against the weight of the
evidence must be first presented to the trial court since that court is best positioned to make
an informed decision as to such issue, having had the benefit of hearing the evidence first
hand.” Id. (quoting Collins v. State, 858 So. 2d 217, 218-19 (¶5) (Miss. Ct. App. 2003)).
Although Allen filed a motion for a new trial, the basis for his motion was “procedural and
substantive errors committed during the trial . . . .” We believe the foregoing language is
insufficient to preserve the weight-of-the-evidence issue for appeal. Cf. Wilson v. State, 904
So. 2d 987, 995 (¶24) (Miss. 2004).

Outcome:

For these reasons, the circuit court did not err in denying Allen’s motion.
¶

Plaintiff's Experts:

Defendant's Experts:

Comments:

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