Tyrone Stovall v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CP-00349-COA
TYRONE STOVALL
APPELLANT
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:
APPELLEE
2/4/2003
HON. LAMAR PICKARD
COPIAH COUNTY CIRCUIT COURT
TYRONE STOVALL (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
ALEXANDER C. MARTIN
CIVIL - POST-CONVICTION RELIEF
PETITION DENIED
AFFIRMED - 05/18/2004
BEFORE SOUTHWICK, P.J., THOMAS, IRVING AND GRIFFIS, JJ.
THOMAS, J., FOR THE COURT:
¶1.
Tyrone Stovall appeals the denial of his petition for post-conviction relief by the Copiah County
Circuit Court. On appeal, he asserts the following verbatim errors warranting reversal of the trial court's
decision:
I.
WHETHER PROCEEDINGS VIOLATED THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, AS WELL AS THE
CONSTITUTION OF THE STATE OF MISSISSIPPI, WHERE HE WAS SUBJECTED TO
DOUBLE JEOPARDY IN BEING CONVICTED OF ARMED ROBBERY AND
CONSPIRACY TO COMMIT EXACT SAME ARMED ROBBERY.
II.
WHETHER SENTENCING ORDER OFFENDS DUE PROCESS OF LAW WHERE
SEPARATE VERDICTS AND JUDGMENTS WERE NOT ENTERED BY COURT IN
ACCORD WITH STATUTORY LANGUAGE.
III.
WHETHER CLAIMS CONSTITUTES PLAIN ERROR AND A DENIAL OF
FUNDAMENTAL DUE PROCESS OF LAW WHICH WARRANTS EXCEPTION TO
PROCEDURAL BAR.
IV.
WHETHER TRIAL COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY
HEARING IN THIS MATTER BEFORE SUMMARILY DENYING THE MOTION.
¶2.
Finding no basis in law for any of Stovall's contentions, we affirm.
FACTS
¶3.
On August 21, 1998, Tyrone Stovall entered guilty pleas to one charge of armed robbery and one
charge of conspiracy to commit robbery. The charges were brought under a two-count indictment. For
the armed robbery, Stovall was sentenced to a prison term of ten years and a term of five years for the
conspiracy charge, sentences to run concurrently.
¶4.
Stovall filed his petition for post-conviction relief in January 2003, alleging the same errors as cited
above. The lower court dismissed the petition as untimely. Stovall then perfected appeal to this Court.
ANALYSIS
¶5.
Mississippi statute provides that a prisoner under sentence of a court of record may seek post-
conviction collateral relief for up to three years from the date the judgment of conviction is entered. Miss.
Code Ann. § 99-39-5(2) (Rev.2000). There are exceptions to the three-year limitation:
(1)
(2)
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
The prisoner 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; or
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(3)
(4)
Cases in which the prisoner claims that his sentence has expired or his probation,
parole or conditional release has been unlawfully revoked; or
Filings for post-conviction relief in capital cases which shall be made within one
year after conviction.
Miss. Code Ann. § 99-39-5(2) (Rev. 2000).
¶6.
The three-year limitation period expired more than a year before Stovall filed his petition for relief.
None of the exceptions to the limitation period apply. The denial of the petition for relief as untimely was
quite correct. However, Stovall argues the time bar should not be applied as the errors he claims affect
his fundamental constitutional rights.
¶7.
It is true that when the fundamental rights of an individual are implicated in a petition for post-
conviction relief, the procedural time bar will not always be applied to preclude review of the claims.
Luckett v. State, 582 So. 2d 428, 430 (Miss. 1991). However, the mere assertion of a constitutional right
violation is not sufficient to overcome the time bar. There must at least appear to be some basis for the
truth of the claim before the limitation period will be waived. Even without the complication of the time bar,
Stovall would still need to make some sort of showing of merit to his claims to avoid dismissal. Miss. Code
Ann. § 99-39-11(2).
¶8.
Stovall cannot support his claims. The time bar was appropriately applied and it is the basis for
the decision of this court. We will, however, briefly address the merits of the claims made.
1. Double jeopardy
¶9.
Stovall argues he was subjected to double jeopardy in violation of his constitutional rights by being
prosecuted and sentenced for both armed robbery and conspiracy to commit armed robbery. Stovall
contends the elements of these crimes are the same and thus constitute but one crime for which he may only
be once punished.
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¶10.
In determining whether two charged offenses actually constitute but one crime, we look to the
elements of each crime. State v. Thomas, 645 So. 2d 931, 933 (Miss. 1994). Where one crime charged
requires proof of an additional fact not required of the second charge, the charges are, in fact, two separate
crimes. Id.
¶11.
Conspiracy to commit armed robbery, or any other crime, requires only the agreement among two
or more people to commit the crime. Miss. Code Ann. § 97-1-1(a) (Rev.2000). Armed robbery, on the
other hand, requires the use of a deadly weapon which places an individual in fear of immediate injury from
the weapon and the taking of personal property of another from his presence. Miss. Code Ann. § 91-3-79
(Rev. 2000). Obviously, actual robbery requires the establishment of several different facts than the
agreement to commit the act.
¶12.
Conspiracy is a complete crime in itself which does not merge into the completed offense. Thomas,
645 So. 2d at. 933. They are two separate crimes and prosecution for both the completed offense and
conspiracy to commit the completed offense does not violate the prohibition against being twice prosecuted
for the same crime. Id. Stovall was not subjected to double jeopardy.
2. Separate judgments and sentencing orders
¶13.
Stovall next contends his right to due process of law was compromised by the failure of the court
accepting his guilty pleas to enter separate judgments and orders as required by statute. The judgment as
issued recited both charges against him, the conviction thereof, and the sentence he received for each of
those charges.
¶14.
Statute requiring convictions of two or more crimes in a multi-count indictment shall have separate
verdict and separate sentences imposed. Miss. Code Ann. § 99-7-2(3)-(4) (Rev. 2000). As noted above
the order and judgment recited both counts of the indictment, found Stovall guilty of each one, and imposed
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separate sentences for each of the offenses. It is unclear what is the exact nature of Stovall's claim of error.
He may be arguing the judgments should have been placed on two separate pieces of paper rather than
one or he may be arguing two separate hearings were required. If the latter claim is intended, that is not a
requirement. Both charges on a multi-count indictment may be handled in one hearing. Miss. Code Ann.
§ 99-7-2(2) (Rev. 2000). If he intends the former argument, there is no basis for that claim in law. Stovall
does not cite any authority which would support the argument, if indeed that is his intended argument, nor
does the independent review by this Court find any such rule.
3. Fundamental right exception to procedural bar
¶15.
This claim has been previously addressed and resolved against the appellant. We need not reiterate
the discussion again.
4. Failure to conduct an evidentiary hearing
¶16.
Finally, Stovall argues the trial court erred in denying him an evidentiary hearing on his claims so
that he could have the opportunity to develop facts to support his claims. He also argues the trial court's
failure to review the transcript of his 1998 plea hearing was plain error.
¶17.
The errors claimed by Stovall are questions of law, not fact. There is no factual evidence which
could be developed during a hearing that would in any way alter the outcome of this claim. A completed
crime and the conspiracy to commit the completed crime will remain separate offenses regardless of what
may be said in a hearing and the trial court would have no choice but to find a double jeopardy claim on
this basis without merit.
¶18.
Likewise, the document containing the judgments of conviction cannot be altered by an evidentiary
hearing. It will continue to contain two charges, two convictions and two separate sentences. The trial
court would not have needed to review the plea hearing transcript to determine the outcome to Stovall's
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allegations of error. They may only be resolved by resort to existing law. Failing to review a transcript
under these circumstances does not constitute error.
¶19. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED
TO COPIAH COUNTY.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, CHANDLER,
MYERS, AND GRIFFIS, JJ., CONCUR.
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