Jerry D. Graves v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-01986-COA
JERRY D. GRAVES A/K/A JERRY DONNELL GRAVES
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
11/09/2000
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
EDWARD J. PETERS
CIVIL - POST-CONVICTION RELIEF
PCR DISMISSED
AFFIRMED- 04/09/2002
4/16/2002; denied 5/28/2002
6/3/2002; granted 10/31/2002
BEFORE KING, P.J., IRVING, AND BRANTLEY, JJ.
IRVING, J., FOR THE COURT:
¶1. This appeal arises from an order of the Circuit Court of the First Judicial District of Hinds County
denying Jerry D. Graves's motion for post-conviction relief. Aggrieved, Graves comes before this Court
pro se seeking resolution of the following issues: (1) whether the trial court was in error and abused its
discretion when it dismissed with prejudice his post-conviction relief motion as time barred by section 9939-5(2) of the Mississippi Code of 1972 as annotated and amended, and (2) whether his sentence is illegal
because the court lacked authority to suspend imposition of his sentence in light of the fact that he had
previously been convicted of a felony.
¶2. We do not find any reversible error; therefore, we affirm the trial court's dismissal of Graves's motion.
FACTS
¶3. A grand jury indicted Graves on a single count of armed robbery. At the arraignment on July 21, 1980,
Graves pleaded guilty pursuant to a plea agreement. He was sentenced to a twenty-five year sentence, with
ten years suspended and the remaining fifteen years to run concurrently with time that he was already
serving. Pursuant to a determination that Graves rendered a free and voluntary waiver, the trial court
accepted Graves's guilty plea and the prosecution's sentencing recommendation. On May 10, 2000, Graves
filed a PCR motion to vacate and set aside the conviction and sentence. The motion alleged that at the time
he was given the sentence with ten years suspended, he was already a convicted felon and that this fact
made him ineligible for a suspended sentence. Consequently, he averred that his sentence was illegal and
that his plea was involuntary because his plea was induced by the offer of the illegal sentence. The trial court
dismissed with prejudice Graves's motion as time barred pursuant to section 99-39-5(2) of the Mississippi
Code of 1972 as annotated and amended. Thereafter, Graves filed this appeal.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶4. "When reviewing a lower court's decision to deny a petition for post-conviction relief, this Court will not
disturb the trial court's factual findings unless they are found to be clearly erroneous. However, where
questions of law are raised, the applicable standard of review is de novo." Pickett v. State, 751 So. 2d
1031 (¶8) (Miss. 1999); Brown v. State, 731 So. 2d 595 (¶6) (Miss. 1999).
¶5. Graves argues here, as he did in the court below, that the court erred in dismissing his petition for postconviction collateral relief because an illegal sentence is excepted from the procedural bars of the PostConviction Collateral Relief Act. The trial court, in its order dismissing the motion, stated that, "it plainly
appears from the face of the motion and the prior proceedings in the case that the motion for relief was not
filed within the statutory limits set in the Miss. Code Ann. § 99-39-5(2), as amended, and does not fall
within one of the exceptions contained therein."
¶6. Before we address the merits of this appeal, we need to address the question of our jurisdiction to
consider the appeal. The State contends that Graves, at the time of the filing of the PCR motion, was not in
custody under a sentence imposed in violation of the constitution or laws of this state by a court of record
of this state. If this was the case, the trial court did not possess the requisite jurisdiction to rule on the
motion, and or of course, no jurisdiction is conferred upon this Court if none was in the court below.
Section 99-39-5 of the Mississippi Code of 1972, as annotated and amended, requires confinement of a
prisoner as a prerequisite to the prisoner's filing a motion for post-conviction relief. In other words, the
prisoner must be serving time under the sentence he complains of in order to bring a post-conviction relief
motion.
¶7. In support of its position, the State apparently concludes, without specifically saying so, that the fifteen
years Graves was ordered to serve expired in 1995. Therefore, Graves could not be in custody for the
sentence he was given on July 21, 1980. The State further points out that while Graves was in custody, he
was in custody serving a life sentence for murder as a habitual offender. Graves v. State, 492 So. 2d 562,
562 (Miss. 1986). As noted, Graves, in his PCR motion, attacks his July 1980 sentence for armed robbery.
Perhaps the State is correct, but the record does not reflect or contain any information regarding the murder
conviction and life sentence. We do not doubt that the appellant in Graves is one and the same as our
appellant here and that we are warranted in taking judicial notice of that conviction and sentence. However,
there is not enough information in the record for us to determine whether, at the time Graves filed his PCR
motion, he was being held pursuant to the July 1980 sentence. For example, we do not know whether he
served a portion of the sentence and was paroled or whether he might have violated the terms of his parole,
if indeed he was paroled, and returned to prison at a later date. Moreover, we decide issues based on the
record, not what is contained in the briefs of the parties. Mason v. State 440 So. 2d 318, 319 (Miss.
1983).
¶8. We turn now to the merits of the appeal. We agree with Graves's assertion that a defendant has the right
to be free from an illegal sentence. We also agree that the procedural bars of the Post-Conviction Collateral
Relief Act do not apply when the sentence complained about is illegal. Ivy v. State, 731 So. 2d 601, 603
(¶13) (Miss. 1999); Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995). However, Graves has not been
prejudiced as a result of his illegal sentence. Instead, he has benefitted from it. He cannot stand mute when
he is handed an illegal sentence which is more favorable than what the legal sentence would have been, reap
the favorable benefits of that illegal sentence, and later claim to have been prejudiced as a result thereof.
McGleachie v. State, 2000-CP-01647 (¶4) (Miss. Ct. App. Nov. 13, 2001).
¶9. Graves points us to Weaver v. State, 785 So. 2d 1085 (Miss. Ct. App. 2001), in support of his
contention that since he received an illegal sentence, he should be allowed to withdraw his guilty plea. He
contends that the offer of the illegal sentence induced him to enter the guilty plea.
¶10. In Weaver, we held that the defendant's sentence was illegal because, as a prior convicted felon, he
was ineligible to receive a suspended sentence. Id. at (¶7). We further held that Weaver should be allowed
to "enter a new plea and exercise his right of a new trial." Id. at (¶12).
¶11. A literal reading of Weaver would permit results not intended by this Court. Therefore, it is
appropriate that we clarify Weaver. Weaver should not be read as permitting a prior convicted felon to
withdraw a guilty plea induced by a beneficial though illegal plea bargain if the convicted felon has enjoyed
the benefits of the favorable illegal bargain. Weaver applies to situations in which a guilty plea was induced
at least in part by a recommendation that some part of the sentence be suspended. If the State later seeks
to rescind that suspension solely because the sentence was statutorily barred and not because of an alleged
violation of the terms of the probation, then removing the suspension would also require that the defendant
be allowed to withdraw his guilty plea. On the other hand, a defendant should not be allowed to reap the
benefits of an illegal sentence, which is lighter than what the legal sentence would have been, and then turn
around and attack the legality of the illegal, lighter sentence when it serves his interest to do so. Allowing
such actions would reap havoc upon the criminal justice system in this state. For example, all subsequent
convictions and sentences of that defendant which are reliant upon the conviction concomitant with the
illegal sentence would have to be set aside. This would result in a number of enhanced and habitual offender
sentences being set aside for the very offender who had already enjoyed greater leniency than the law
allows. Likewise, the State should not be allowed to engage in a plea bargain encompassing a
recommendation for a sentence more lenient than what the law permits, reap the benefit of not having to go
to trial and later seek to have the illegal, lighter sentence set aside while maintaining the validity of the
attendant conviction. We can perceive no constitutional imperative or compelling state interest which would
require or permit either scenario.
¶12. In conclusion, we hold that the trial court was correct in finding that the motion was not filed within the
three-year statutory time frame for filing PCR motions. However, as already discussed, the three-year bar
does not generally preclude consideration of a motion seeking relief from an illegal sentence. Nevertheless,
on the facts of this case, we find that no relief is warranted. Therefore, we affirm the trial court's dismissal of
Graves's PCR motion.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY DISMISSING
POST-CONVICTION COLLATERAL RELIEF MOTION WITH PREJUDICE IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
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