Desmond Earl Phillips v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-00459-COA
DESMOND EARL PHILLIPS
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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
2/12/2004
HON. ANDREW K. HOWORTH
LAFAYETTE COUNTY CIRCUIT COURT
DESMOND EARL PHILLIPS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
BEN CREEKMORE
CIVIL - POST- CONVICTION RELIEF
TRIAL JUDGE DISMISSED PETITIONER’S
MOTION FOR POST-CONVICTION RELIEF.
AFFIRMED: 04/12/2005
BEFORE BRIDGES, P.J., IRVING AND MYERS, JJ.
IRVING, J., FOR THE COURT:
¶1.
Desmond Earl Phillips filed a petition for post-conviction relief, attacking the validity of his prior
burglary convictions which were used to enhance the sentence for a later cocaine conviction. The trial
judge dismissed the petition without a hearing, and Phillips appealed raising the following issues: (1) the trial
judge erred in dismissing his (Phillips’s) petition as time barred, and (2) the trial judge erred in dismissing
the petition without conducting an evidentiary hearing.
¶2.
Finding no reversible error, we affirm the trial judge’s dismissal of Phillips’ petition.
FACTS
¶3.
In November 1979, Phillips pleaded guilty to two counts of burglary and was sentenced to ten
years on each count. The trial judge suspended six years of each sentence and allowed Phillips to serve
the four remaining years of each sentence concurrently.
¶4.
In April 1983, Phillips pled guilty to a reduced charge of conspiracy to commit forgery and received
a five-year suspended sentence and was placed on probation. Thereafter, in October 1988, Phillips was
convicted of possession of cocaine with intent to distribute. As a result of his prior guilty pleas, he was
sentenced as a habitual offender to thirty years in the custody of the Mississippi Department of
Corrections.1
¶5.
In April 1999, Phillips filed two separate petitions for post-conviction relief. In his first petition,
Phillips attacked the voluntariness of his 1979 burglary pleas. Phillips alleged that neither the trial judge
nor his attorney advised him of his right against self-incrimination. In the second petition, Phillips attacked
his forgery plea and similarly alleged that he was not advised of his right against self- incrimination.
¶6.
In July 2001, the trial judge entered an order summarily dismissing Phillip’s petition attacking his
forgery plea. Phillips appealed the dismissal of that petition, and this Court affirmed the trial judge in an
opinion. Phillips v. State, 856 So. 2d 568 (Miss. Ct. App. 2003).
¶7.
In December 2003, Phillips filed a memorandum in support of the remaining petition attacking his
1979 burglary pleas which had not yet been decided by the trial court. In February 2004, the trial judge
1
The record indicates that in July 1984, Phillips was also sentenced as a habitual offender to serve
three years for the crime of burglary. The record further notes that the State waived the mandatory
maximum sentence.
2
entered an order summarily dismissing Phillips’ petition as time barred. Additional facts will be related
during our discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
(1) Timeliness of Petition
¶8.
Phillips first contends that the trial judge erred in dismissing his petition as time barred. The State,
however, counters that Phillips failed to file his motion for post-conviction relief within the three-year
statutory time frame.
¶9.
Mississippi Code Annotated section 99-39-5(2) (Supp. 2004), which governs post-conviction
proceedings, provides in pertinent part that:
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.
¶10.
“This act applies prospectively from its date of enactment, April 17, 1984.” Odom v. State, 483
So. 2d 343, 344 (Miss. 1986). “Individuals convicted prior to April 17, 1984, have three (3) years from
April 17, 1984, to file their petition for post conviction relief.” Id. Those individuals convicted after April
17, 1984, generally have three (3) years in which to file a petition for relief. Id.
¶11.
Phillips entered his guilty plea in November 1979, prior to the enactment of section 99-39-5.
Therefore, he had three years from April 17, 1984, the date of its enactment, to file his petition. This Court
finds that since Phillips failed to file his petition within the statutory time frame, the trial judge was correct
in dismissing Phillip’s petition as time barred. As a result, this issue is without merit.
(2) Evidentiary Hearing
3
¶12.
Phillips next argues that the trial judge erred in failing to conduct an evidentiary hearing before
dismissing his petition. However, Mississippi Code Annotated section 99-39-19 (Rev. 2000) makes clear
that an evidentiary hearing is not required when there is no genuine issue of material fact. Similarly,
Mississippi Code Annotated section 99-39-11(2) (Rev. 2000), which governs summary disposition of
motions, provides for the following: “
If
it
plainly
appears
from
the face
of the
motion,
a n y
annexe
d
exhibits
and the
prior
procee
dings in
the case
that the
movant
4
is
not
entitled
to any
relief,
t h e
judge
m a y
make
a
n
order
for its
dismiss
al and
cause
t h e
prisoner
to
be
notified
.” ¶13.
A
review
of the
5
record
reveals
that the
trial
judge
did not
err
in
dismissi
n
g
Phillips’
petition
without
a
n
evidenti
a r y
hearing.
Here,
the trial
judge
found
t h a t
Phillips’
6
petition
w a s
time
barred;
therefor
e, there
was no
genuine
issue of
material
fact to
conside
r.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY
DISMISSING MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
7
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