Bobby Glenn Wall, Sr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CP-02799-COA
BOBBY GLENN WALL, SR.
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
12/10/2003
HON. MIKE SMITH
PIKE COUNTY CIRCUIT COURT
BOBBY GLENN WALL, SR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DEE BATES
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED.
AFFIRMED - 09/28/2004
BEFORE BRIDGES, P.J., CHANDLER AND GRIFFIS, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
On November 22, 2002, before the Circuit Court of Pike County, Bobby Glenn Wall pled guilty
to the charges of escape of a prisoner from jail and unlawful taking of a motor vehicle. Wall was
sentenced to serve three years for the crime of escape of a prisoner from jail and two years for unlawful
taking of a motor vehicle, both to be served in the custody of the Mississippi Department of Corrections
and to run consecutively to each other and consecutively to his other sentence presently being served.
¶2.
On November 12, 2003, Wall filed a motion for post-conviction relief claiming improper indictment
and ineffective assistance of counsel. Wall filed an amended motion for post-conviction relief on December
9, 2003. Wall’s motion was denied in an order dated December 10, 2003, which did not consider the
amended motion with an additional claim. The trial court later denied the amended motion in an order
dated January 22, 2004. Wall appealed the December 10, 2003 order on December 18, 2003, and has
yet to file an appeal of the January 22, 2004 order. However, since Wall’s amended motion was filed
before the judgment was entered on the original motion, the amended motion will relate back and be made
a part of the original. Therefore, we will consider all issues appealed.
STATEMENT OF THE ISSUES
I. WHETHER THE TRIAL COURT ERRED IN SENTENCING WALL TO CONSECUTIVE
SENTENCES WHERE PROMISE, INDUCEMENT AND PLEA AGREEMENT WERE FOR THE
SENTENCES TO RUN CONCURRENTLY AND CONCURRENTLY WITH THE SENTENCE
WALL WAS ALREADY SERVING?
II. WHETHER THE TRIAL COURT ERRED IN REMAINING SILENT AS TO WHETHER OR
NOT IT WOULD ACCEPT OR REJECT THE PLEA AGREEMENT MISLEADING WALL TO
BELIEVE THAT THE AGREEMENT WOULD BE FULFILLED AFTER A PLEA OF GUILTY WAS
ENTERED?
FACTS
¶3.
On February 21, 2002, Wall was indicted for escape from prison and unlawful taking of an
automobile. Wall, convicted of eleven prior offenses in three states, was also indicted as an habitual
offender under Section 99-19-81 of the Mississippi Code. Wall pled guilty before the Circuit Court of
Pike County and was sentenced to serve a three year sentence and a two year sentence consecutively to
each other and consecutively to the sentence he was serving when he escaped.
¶4.
Wall’s motion for post-conviction relief was filed on November 12, 2003, and claimed improper
indictment and ineffective assistance of counsel. This motion was denied without hearing on December 10,
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2003, and Wall appealed. An amended motion was filed including an additional issue of improper
sentencing. Wall believed he would receive concurrent sentences rather than consecutive sentences. The
trial court also denied this motion.
ANALYSIS
I. WHETHER THE TRIAL COURT ERRED IN SENTENCING WALL TO CONSECUTIVE
SENTENCES WHERE PROMISE, INDUCEMENT AND PLEA AGREEMENT WERE FOR THE
SENTENCES TO RUN CONCURRENTLY AND CONCURRENTLY WITH THE SENTENCE
WALL WAS ALREADY SERVING?
¶5.
The recommended sentence given to Wall by the district attorney’s office was provided as an
exhibit to his motion for post-conviction relief. In the recommended sentence Wall was to receive ten years
for the charge of escape from prison and five years for the charge of unlawful taking of an automobile.
These sentences as listed on the district attorney’s recommended sentence form were to run concurrently
with each other and with the sentence he was already serving. Wall did not receive these sentences. He
received a sentence of three years on the first count and two years on the second and they were not to run
concurrently but consecutively.
¶6.
Ordinarily a trial judge is not bound by the terms of a plea agreement because it is the product of
a bargaining process between the defendant and the prosecutor, and the judge is not a party to the
agreement. Martin v. State, 635 So.2d 1352, 1355 (Miss. 1994). The trial judge's decision to accept
or reject a plea is within the exercise of sound judicial discretion. Miss. Code Ann. § 99-15-53 (Rev.
2000); Moody v. State, 716 So.2d 592, ( ¶9) (Miss. 1998); Martin, 635 So.2d at 1355.
¶7.
Wall’s sentence was not concurrent like it stated in the recommendation; however, he was only
sentenced to a total of five years when the recommendation was for fifteen. Therefore, the sentence given
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to Wall was within the bounds set by the statute and was not an abuse of the Circuit Court's discretion.
Wall’s appeal on this issue is denied.
II. WHETHER THE TRIAL COURT ERRED IN REMAINING SILENT AS TO WHETHER OR
NOT IT WOULD ACCEPT OR REJECT THE PLEA AGREEMENT MISLEADING WALL TO
BELIEVE THAT THE AGREEMENT WOULD BE FULFILLED AFTER A PLEA OF GUILTY WAS
ENTERED?
¶8.
Wall did not provide any legal authority to support the claims on this issue. An appellant has a duty
a provide authority and support an assignment of error. Hoop v. State, 681 So.2d 521, 522 (Miss. 1996).
Assignments of error that are unsupported by citation or authority are considered abandoned. Thibodeaux
v. State, 652 So.2d 153, 155 (Miss. 1995). As such, we will not discuss the merits of this issue.
¶9.
THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DENYING POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO PIKE COUNTY.
KING, C.J., LEE, P.J., MYERS, CHANDLER, GRIFFIS AND BARNES, JJ.,
CONCUR. IRVING, J., CONCURS IN RESULT ONLY. ISHEE, J., NOT PARTICIPATING.
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