Serial: 219490

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

No. 2017-KA-01331-COA

BRIAN CLARK Al.KIA BRIAN FRANK Appellant

CLARK FILED
v. AUG 14 2018
OFFICE OF THE CLERK
STATE OF MISSISSIPPI SUPREME COURT Appellee
COURT OF APPEALS

ORDER

This matter comes before the Court en bane on its own motion. Brian Clark has filed

a direct appeal following his guilty plea to aggravated domestic violence in cause number

2013-0395-CRIK. "[A] litigant's right to an appeal is statutory and not based on any

inherent common law or constitutional right." Wrenn v. State, 121 So. 3d 913, 914 (,J3)

(Miss. 2013 ). When a defendant has been sentenced as the result of a guilty plea, "no appeal

from the circuit court ... shall be allowed." Miss. Code Ann. § 99-35-101 (Rev. 2015).

Consequently, we must dismiss Clark's appeal. See Joseph v. State, 111 So. 3d697, 698 (15)

(Miss. Ct. App. 2013).

THEREFORE, this appeal is dismissed without prejudice. All costs of this appeal are

assessed to the appellant.

~~
SO ORDERED, this the ~ day of August, 2018.

C:JJ~i~
E-Filed Document Aug 9 2018 15:08:47 2017-KA-01331-COA Pages: 2

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

BRAIN CLARK APPELLANT

VS. NO. 2017-KA-01331-COA

STATE OF MISSISSIPPI APPELLEE

VOLUNTARY MOTION TO DISMISS APPELLANT’S APPEAL

COMES NOW the Appellant, Brian Clark, in the above styled and numbered cause, and

pursuant to Rule 42(b) of the Mississippi Rules of Appellate Procedure, files this his Voluntary

Motion to Dismiss Appellant’s Appeal, and in support of said motion, Appellant shows unto this

Honorable Court the following, to-wit:

I. The brief of the Appellant was due on or before August 8, 2018.

II. Undersigned submits that this appeal was filed by trial counsel, Honorable Rod Ray, and

not filed by undersigned who has resumed all legal representation of defendant.

III. Undersigned submits that this appeal is moot under Mississippi Code §99-35-101, which

states that there cannot be an appeal of a sentence upon a guilty plea. The defendant in

this matter was sentenced in the trial court after entering a guilty plea.

IV. Due to the above, your Appellant submits that he does not wish to pursue his appeal any

further.

V. Your Appellant believes he has paid all cost of appeal, but to the extent that if there is a

remaining balance, Appellant agrees to pay same.

WHEREFORE, PREMISES CONSIDERED, attorney for Appellant respectfully requests

that this Honorable Court dismiss this appeal based upon the above and assess all cost of appeal

to the Appellant.
 Respectfully submitted this the 9th day of August, 2018.

BRIAN CLARK

BY: /s/ John M. Colette

JOHN M. COLETTE
ATTORNEY FOR THE APPELLANT
BRIAN CLARK

JOHN M. COLETTE, MSB #6376

SHERWOOD A. COLETTE, MSB#103488
John M. Colette & Associates
501 South State Street
Jackson, Mississippi 39201
(601)355-6277 Office
(601)355-6283 Facsimile

CERTIFICATE OF SERVICE

I, John M. Colette, do hereby certify that I have on this date filed the foregoing with the

clerk, and have served a true and correct copy of same via the Court’s electronic filing system on

all parties of record.

This the 9th day of August, 2018.

/s/ John M. Colette

John M. Colette
 i . ·, :\:

IN
ii' _?0117-(;>- !'33/
CIRCUIT CbURT OF LOWNDES COUNTY, MISSISSIPPI

AUGUST TERM, 2017

S'FATE OF MISSI. SIPPI

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FILE-D
V ·. I SEP. 2 2 20111 NO.: 2013-0395- Rlt(

B
I CLARK i
OFFICE OF THE CLERK
SUPREME-COURT
i I.
COURT OF APPEALS

SENTENCING ORDER
I: After Guilty Plea On Former Day
Partial Suspended Sentence
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Comes no; I the Defendant, BRIAN CLARK, represented by counsel, Rrd Ray, and I
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p ~sents him/herse ' to the Court for sentencing on this day for the crime of A~ VATED
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A SAULT-DOME TIC VIOLENCE §97-3-7, to which he/she entered a plea o "lty on a

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p :vious day, and th Court having accepted the Defendant's guilty plea.

A pre-sent 11.ce investigation has been conducted, a copy of which has been futtliah~d to the
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defendant and~ r counsel. and a Sentencing Hearing was conducted by the Court

IT IS FORE ORDERED that the Defendant be sentenced to s e term of

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S' EN (16) y !\ in the Mississippi Department of Corrections, with SIX (6) y I
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L
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tbe terms~ ~nditions of Post-Release Supervision fur a period of FIVE (5) e
.
, leaving I
· (10) years tq e in the Mississippi Department of Corrections, a fine in e ount of j
$ ~00.00 and .all *I i
s of court, said costs, and fine are to be paid during tbe period o1Po Release I
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S k. ff>rth in this Order, and submit him/herself to any alcohol/drug ca eling the
rvision as set I
Is1ss1pp1
. . . D : t!I Ii·ent of Corrections . . and the DCJ.endant is
deems necessary, : I : d to the
. reman
.C'.

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Slileriff to await. traiiI ortation.
. '

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(GP2)

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 I: Post-Release Supervision , .
In addition ·. the above stated term of incarceration, the Court, pursuant to Section ~7-7-34

Miss. Code (1972) I. otated, hereby sentences the Defendant to be placed on FIVE: (5 y,
1
. of

Po It Release Supe ,"'.ion after release from confinement wider the following terms and co ditions::
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(a) Def'id dant shall hereafter commit no offense against the laws of this or y State of
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the U 'ted States;
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(b) Avoi , injurious or vicious habits;

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(c) A voi persons or places of disreputable character;

(d) Rep~ to the Department of Corrections, as directed by it;

(e) Pe 11 't the field officer to visit him/her at home, or elsewhere;

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(t) Wo · faithfully at suitable employment, so far as possible;

(g) -1'.e
D l !. WI'thin the State of Miss1ss1pp1,
' ' • un1ess authon"zed to 1eave on prpp

app!iIl:. .on, therefore;

(h) Su : rt his/her dependents;
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(i) ~ : e/she does hereby waive extradition to the State of Mississippifrr

juri!j ·iction in or outside of the United States where he/she may be fo
11 ;thathe/she
\\
1 wm not contest any effiort by any Juns
· · diction
· to return
·

the i8. te of Mississippi;

(j) S Il ;pay
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to the Department ofC orrections
. . . .c..iee m
a supems1on •
an mµo , t

by J :!Ute each month by certified check or money order until discharJ

ll: ..
sup~rs10n; '
(k) AndI er, that he/she does not use beer or alcohol at any time and will
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.I (GP2)
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. i

J J· ,f illell'!I drug at any time;

(I) Subj \ as provided in Section I of House Bill 354, 1983 Regular Session, to any

J 1 .:f breatb, saliva, or urine chemical analysis test, the purpose of w+h ~ to
~·the possible presence of alcohol or a substance prohibited or conlo : by

any~ w of the State of Mississippi or the United States; ·

(m)
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FinJ/' osts/Fees are to be paid at the rate of $100.00 per month beginnings ty (60)
,II . , 1
days; om the date of release and payable by the 15th of each month unti
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(n) The , efendant shall submit him/herself.to any anger management, battJ ':

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int ; r ,tion and/or any other counseling deemed necessary by the Missi si pi
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Dep , ent of Corrections;
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(o) e Defendant have no contact with the victim, Dr. Hope Clark, excep as
rela · to their minor child, or Erin Treadwell;

(p)
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The! ,efendant shall submit him/herself to any alcohoJ/drug counseling pro
:jrl, necessary by the Mississ1pp1
deem . . . Department ofC orrections;
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It is further ~·rdered that the interrogation to the Defendant by the Court as abm,e
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cn'bed by JfCourt Reporter and placed in the Court file of this proceeding.
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SO ORDE .' . this the Sf l.
day of ~G,I\JI~ , 20____.__,.1--1- j
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'"cmc~nIDGE

A. ,., ~ l ' ~ · (GP2)

~rcult Clerk