Michael Weston v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-01358-COA
MICHAEL WESTON A/K/A MICHAEL JEROME WESTON A/K/A
MICHAEL GEROME WESTON
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF TRIAL COURT JUDGMENT: 07/22/1998
TRIAL JUDGE:
HON. W. SWAN YERGER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
PRO SE
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DISTRICT ATTORNEY:
EDWARD J. PETERS
NATURE OF THE CASE:
CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:
07/22/1998: POST-CONVICTION RELIEF DISMISSED.
DISPOSITION:
AFFIRMED - 3/26/2002
MOTION FOR REHEARING FILED: 4/9/2002; denied 6/25/2002
CERTIORARI FILED:
7/1/2002; 8/16/2002; denied 10/17/2002
MANDATE ISSUED:
BEFORE KING, P.J., THOMAS, AND MYERS, JJ.
KING, P.J., FOR THE COURT:
¶1. Michael Weston appeals the dismissal of his request for post-conviction relief in the Hinds County
Circuit Court. Weston raises the following assignments of error: (1) whether he received effective assistance
of counsel and (2) whether his plea of guilty was voluntary. Upon review of the record, we find that
Weston's assignments of error are procedurally barred.
FACTS
¶2. On February 6, 1991, Weston was indicted for conspiracy to distribute cocaine. On February 11,
1992, Weston pled guilty to conspiracy to distribute cocaine. The trial court accepted Weston's plea as
voluntarily and intelligently made. On March 11, 1992, Weston was sentenced to five years with four years
suspended and one year to serve.
¶3. At some time, not designated by the record, Weston failed to report to serve his sentence. It was later
discovered that Weston was serving a fourteen-year and ten-month sentence in a Kentucky federal prison.
On October 17, 1996, the State of Mississippi completed a detainer with the Federal Correction Institution
in Manchester, Kentucky where Weston was incarcerated.
¶4. On November 13, 1997, Weston requested that his Mississippi sentence run concurrently with his
federal sentence. On November 19, 1997, the circuit court denied this motion. At a later date, Weston filed
a petition with the circuit court for post-conviction relief. This petition is not a part of the designated record
before this Court. Nevertheless, the record does provide the order dismissing Weston's post-conviction
petition dated and signed on July 22, 1998.
Resolution of Issues
¶5. The Mississippi post-conviction statute requires that any motion for post-conviction relief be filed within
three years of entry of the judgment of conviction.(1) The failure to file a post-conviction relief request within
the three-year limitation will result in a procedural bar. However, the statute enumerates three exceptions to
the procedural bar of post-conviction relief. It provides
Excepted from this three-year statute of limitations are those cases in which the prisoner can
demonstrate either that there has been an intervening decision of the Supreme Court of either the
State of Mississippi or the United States which would have actually adversely affected the outcome of
his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial,
which is of such nature that it would be practically conclusive that had such been introduced at trial it
would have caused a different result in the conviction or sentence. Likewise excepted are those cases
in which the prisoner claims that his sentence has expired or his probation, parole or conditional
release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital
cases which shall be made within one (1) year after conviction.
Mississippi Code Annotated Section 99-39-5(2) (Rev. 2000).
¶6. Weston was sentenced on March 10, 1992, at which time his three-year period of limitation started.
The record before this Court does not contain a copy of Weston's request for post-conviction relief. There
is however an order in the record, dated July 22, 1998, which denied post-conviction relief. While the
record reflects gaps in the chronology of Weston's post-conviction petition relief efforts, there is enough
clarity and coherence in the record to support the denial of post-conviction relief.
¶7. The order of denial states that the motion is beyond the three-year period of limitation and is not subject
to any of the enumerated exceptions. Weston does not dispute this finding, nor does he demonstrate that he
presented evidence sufficient to establish the applicability of any exception. Weston's request for relief was
required to be filed on or before March 10, 1995. It was not filed by March 10, 1995, and the circuit court
properly denied relief.
¶8. This Court affirms the Hinds County Circuit Court's denial of post-conviction relief.
¶9. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT DENYING POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
HINDS COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
1. A motion for relief under this article shall be made within three (3) years after the time in which the
prisoner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is
taken, within three (3) years after the time for taking an appeal from the judgment of conviction or
sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of
conviction. Mississippi Code Annotated Section 99-39-5(2) (Rev. 2000).
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