Omar L. Nelson v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CP-00835-COA

OMAR L. NELSON A/K/A OMAR NELSON APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/07/2013
TRIAL JUDGE: HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OMAR L. NELSON (PRO SE)
ATTORNEY FOR APPELLEE: A. MORRIS SWEATT
NATURE OF THE CASE: CIVIL - OTHER
TRIAL COURT DISPOSITION: DENIED PETITION FOR RETURN OF
SEIZED PROPERTY
DISPOSITION: AFFIRMED - 09/16/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., ISHEE AND JAMES, JJ.

LEE, C.J., FOR THE COURT:

FACTS AND PROCEDURAL HISTORY

¶1. Omar Nelson was involved in an illegal drug-trafficking operation, supplying Pearl

River County with illegal drugs. The Pearl River County Sheriff’s Department conducted

a year-long investigation, with help from the United States Drug Enforcement Agency to

assist with possible federal prosecution. The sheriff’s department served warrants on

properties occupied and used by Nelson. During the execution of the search warrants,

several items belonging to Nelson were seized; some of these items were used as evidence

in Nelson’s criminal prosecution; and some were seized as forfeitable items.
¶2. On March 25, 2011, the sheriff’s department filed a petition for forfeiture in the Pearl

River County Circuit Court. A summons was issued to Nelson that same day, and the return

of process indicates Nelson was personally served with process on June 22, 2011. Nelson

failed to respond to the forfeiture petition.

¶3. The State filed a motion for a default judgment, asking the trial court to conduct a

hearing to determine whether the property in question was subject to forfeiture. The trial

court heard evidence and concluded the property was forfeited. The trial court entered a

default judgment on August 16, 2011, declaring the Pearl River County Sheriff’s Department

and the Fifteenth Circuit Court District Attorney’s Office owners of the property in question.

¶4. On April 29, 2013, Nelson filed a petition for return of his seized property, which

included jewelry, a television, and 108 compact discs. The trial court dismissed Nelson’s

petition with prejudice, finding Nelson’s petition was untimely. Nelson now appeals to this

Court, asserting that jurisdiction was proper in federal court.

DISCUSSION

¶5. In his only issue on appeal, Nelson argues that jurisdiction was proper in federal court.

However, we find Nelson’s petition filed April 29, 2013, was untimely; thus, we affirm the

trial court’s judgment. According to Mississippi Code Annotated section 41-29-179(1) (Rev.

2013), “an owner of property . . . that has been seized shall file an answer within thirty (30)

days after the completion of service of process.” Nelson failed to do so. The statute further

states that “[i]f an answer is not filed, the court shall hear evidence that the property is

subject to forfeiture and forfeit the property to the Mississippi Bureau of Narcotics or the

local law enforcement agency.” Id. In this instance, the trial court entered a default

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judgment declaring the sheriff’s department owner of the property in question.

¶6. Mississippi Rule of Civil Procedure 55(c) states that a default judgment may be set

aside for good cause shown in accordance with Mississippi Rule of Civil Procedure 60(b).

But Nelson has failed to raise any of the reasons listed in Rule 60(b) that might offer him

relief. Ultimately, the trial court determined Nelson’s petition was untimely. Under our

familiar abuse-of-discretion standard, we cannot find the trial court erred in dismissing

Nelson’s petition as untimely. See Tatum v. Barrentine, 797 So. 2d 223, 227 (¶15) (Miss.

2001).

¶7. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.

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