Johnnie H. Wheeler v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-00559-COA
JOHNNIE H. WHEELER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
3/10/2004
HON. KEITH STARRETT
LINCOLN COUNTY CIRCUIT COURT
JOHNNIE H. WHEELER (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DEE BATES
CIVIL - POST-CONVICTION RELIEF
THE MOTION FOR POST-CONVICTION
RELIEF WAS DISMISSED.
AFFIRMED - 04/12/2005
BEFORE LEE, P.J., MYERS AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Johnnie H. Wheeler appeals fromthe dismissal of his motion for post-conviction relief by the Circuit
Court of Lincoln County. Wheeler asserts the following issues on appeal:
I. THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THAT APPELLANT HAD AN
ILLEGAL SENTENCE.
II. THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THE MOTION ON
GROUNDS OF "TIME BARRED" BY THE POST-CONVICTION RELIEF ACT.
¶2.
Finding no error, we affirm.
FACTS
¶3.
On February 26, 2004, Wheeler filed a motion for post-conviction relief (PCR) challenging his
1997 conviction and sentence for sale of cocaine, citing MississippiCode Annotated section 47-7-33 (Rev.
2004). Section 47-7-33 allows a circuit court to "suspend[] the imposition of any sentence . . . and plac[e]
the defendant on probation" if the defendant has no prior felony convictions. Wheeler alleged that he
received an illegally suspended sentence for his cocaine sale conviction because he was a prior felon and
the circuit court lacked the power to suspend his sentence under § 47-7-33.
¶4.
The circuit court dismissed Wheeler's PCR. The court found that Wheeler had been sentenced
to three years, with two years to serve and one year to be served on post-release supervision. The court
held that a sentence of post-release supervisionwas not a suspended sentence that was impermissible under
§ 47-7-33 and, therefore, Wheeler's sentence was legal. The court further found that Wheeler's PCR was
time-barred.
LAW AND ANALYSIS
¶5.
The State argues that we must affirm the dismissal of Wheeler's PCR because the PCR was
untimely filed and because Wheeler did not receive an illegal sentence. We agree, but first discuss an
additional jurisdictional problem with Wheeler's PCR that was not addressed by circuit court. Wheeler
received the conviction and sentence at issue on August 26, 1997. He received a three year sentence.
Therefore, Wheeler should have completed the challenged sentence on August 26, 2000. Wheeler has not
provided this Court with any evidence that he is still serving the sentence or allege that he is still serving it.
Therefore, we presume that Wheeler is no longer serving the sentence.
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¶6.
Mississippi Code Annotated section 99-39-5(1) (Supp. 2004) provides that "[a]ny prisoner in
custody under sentence of a court of record of the State of Mississippi who claims (a) that the conviction
or the sentence [is erroneous] . . . may file a motion . . . ." This language requires that a defendant desiring
to attack a conviction and sentence under the post-conviction laws must actually be serving the challenged
sentence at the time the PCR is filed. Phillips v. State, 856 So. 2d 568, 569 (¶4) (Miss. Ct. App. 2003).
Since Wheeler completed his sentence on August 26, 2000, when Wheeler filed the PCR on February 26,
2004, he was no longer in custody under the conviction and sentence. Thus, the circuit court lacked
jurisdiction to consider his PCR. Torns v. State, 866 So. 2d 486, 489 (¶11) (Miss. Ct. App. 2003).
Since the circuit court did not have jurisdiction to address Wheeler's PCR, this Court is also without
jurisdiction. Id.
¶7.
The circuit court correctly held that Wheeler's PCR was time-barred. Because Wheeler was
convicted pursuant to a guilty plea, he had three years from the entry of judgment of conviction to make
a motion for post-conviction relief. Miss. Code Ann. § 99-39-5 (2) (Supp. 2004). Wheeler's PCR was
filed outside of the three year limitations period and, therefore, it was time-barred. Wheeler argued that
his claim of an illegal sentence impacted his fundamental rights and excepted his PCR from the time bar
pursuant to Norwood v. State, 846 So. 2d 1048, 1053 (¶15) (Miss. 2003). The lower court correctly
found this argument to be without merit. A sentence of post-release supervision falls under Mississippi
Code Annotated section 47-7-34, which provides for post-release supervision as an alternative to
probation for prior felons. Gaston v. State, 817 So. 2d 613, 619 (¶20) (Miss. Ct. App. 2002). Because
Wheeler was sentenced under § 47-7-34, not § 47-7-33, Wheeler's sentence was not illegal and his
fundamental rights were not violated. Id. Thus, his PCR was subject to the time bar.
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¶8.
Finally, the State has brought to our attention that Wheeler filed an earlier motion for post-
conviction relief. The State argues that Wheeler's filing of an earlier PCR foreclosed his current claims from
consideration under the successive pleadings bar, which estops a prisoner from filing a second motion for
post-conviction relief from a conviction absent certain exceptions. Miss. Code Ann. § 99-39-23 (6)
(Supp. 2004). It appears from the State's submission that Wheeler's earlier PCR pertained to a different
conviction from the one at bar. Therefore, the PCR sub judice was not an impermissible successive
pleading.
¶9.
Since the circuit court lacked jurisdiction to consider Wheeler's PCR because Wheeler's sentence
had expired and because the PCR was time-barred, we affirm the dismissal of Wheeler's PCR.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY DISMISSING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO LINCOLN COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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