Timothy Keith Gates v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-01004-COA
TIMOTHY K. GATES
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
6/22/2004
HON. ANDREW K. HOWORTH
UNION COUNTY CIRCUIT COURT
TIMOTHY KEITH GATES (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED
AFFIRMED - 06/14/2005
BEFORE BRIDGES, P.J., CHANDLER AND ISHEE, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
On November 6, 2003, after being sentenced as an habitual offender to a term of life in the custody
of the Mississippi Department of Corrections, Timothy K. Gates filed a petition for post-conviction
collateral relief in the Circuit Court of Union County claiming that the sentence he received following his
guilty plea in 1991 was illegal and should be set aside. The circuit court denied his request for relief as time
barred. Aggrieved by said denial, Gates has appealed to this Court, and though he claims to raise three
separate issues in his brief, he collectively advances but a single issue stated as follows:
I. DID THE CIRCUIT COURT ERRONEOUSLY DENY GATES’S PETITION FOR POSTCONVICTION COLLATERAL RELIEF AS TIME BARRED CONSIDERING THAT HE WAS
ORDERED TO SERVE AN ILLEGAL SENTENCE?
¶2.
Finding no merit in Gates’s argument, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3.
In 1989, the Circuit Court of Union County sentenced Gates to five years of supervised probation
upon being found guilty of grand larceny. Gates appeared before the Circuit Court of Union County again
on November 15, 1991, pleading guilty to two counts of uttering forgery. The court sentenced Gates to
serve a term of seven years, with three suspended, and revoked the portion of time remaining on the
suspended sentence from 1989, ordering said sentences to run concurrently. Gates received early release
from said sentence but was later convicted of homicide and aggravated assault. Consequently, Gates was
sentenced as an habitual offender and was ordered to serve a term of life in the custody of the Mississippi
Department of Corrections.
¶4.
On November 6, 2003, Gates filed a petition for post-conviction collateral relief in the Circuit
Court of Union County claiming that the sentence he received following his guilty plea in 1991 was illegal
and should be set aside. The court denied the petition as time barred, so Gates appealed to this Court.
LAW AND ANALYSIS
¶5.
A prisoner requesting relief under the Mississippi Uniform Post-Conviction Collateral Relief Act,
whose conviction resulted from a guilty plea, must file a petition “within three (3) years after entry of the
judgment of conviction.” Miss. Code Ann. § 99-39-5(2) (Supp. 2004). Gates’s 1991 conviction on two
counts of uttering forgery was the product of a plea agreement, and his conviction on said plea was entered
by the Circuit Court of Union County on November 15, 1991. Gates then filed his petition for postconviction relief as to that conviction on November 6, 2003, which he concedes exceeded the statutorily
prescribed period by almost nine years.
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¶6.
Gates maintains, however, that his petition, based on the claim that he was ordered to serve an
illegal sentence following his 1991 guilty plea, is excepted from the procedural time bar because it affects
a fundamental constitutional right. Specifically, Gates claims that said sentence was illegal by arguing that
Miss. Code Ann. § 47-7-33(1) (Rev. 2004) precluded the court from suspending three years of the ten
to which he was ordered to serve because he had been convicted of a felony prior thereto. Gates
additionally asserts that his sentence was illegal by claiming that his plea of guilty was entered (a)
involuntarily because he was induced to do so upon being offered the aforementioned suspended sentence
that he was not statutorily eligible to receive, and (b) unintelligently because no one informed him that he
was ineligible to receive a suspended sentence nor that he could be sentenced as an habitual offender if
subsequently convicted of a felony. Gates concludes requesting that we recognize, under the plain error
doctrine, that he was deprived of his fundamental right to be free from an illegal sentence.
¶7.
We do agree that a defendant has the right to be free from an illegal sentence and that the
procedural bars under the Act do not apply when the sentence complained about is illegal. See Ivy v.
State, 731 So. 2d 601, 603 (¶13) (Miss. 1999). However, we observe that a prisoner is only eligible to
challenge a sentence while “in custody under sentence” of the conviction from which relief is sought. Miss.
Code Ann. § 99-39-5(1) (Supp. 2004). In the petition now before us, Gates challenges the legality of the
seven-year sentence that followed his 1991 conviction. We note, though, that said sentence expired
roughly five years before he filed this petition. The post-conviction relief procedures, for setting aside a
conviction, are only available while the prisoner is under the effect of the conviction he seeks to set aside.
Weaver v. State, 852 So. 2d 82, 85 (¶7) (Miss. Ct. App. 2003). Consequently, Gates’s petition was
properly denied because no prisoner may “use these procedures to challenge a sentence that has already
been served even though he is in custody under a sentence for a different crime.” Id.
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¶8.
The denial of Gates’s petition was also proper considering that, in Clark v. State, this Court
“affirm[ed] the denial of post-conviction relief to a prisoner whose only complaint is that he received an
impermissibly lenient sentence and then, by his own subsequent action, squandered the benefit of that
undeserved lenience.” Clark v. State, 858 So. 2d 882, 887 (¶20) (Miss. Ct. App. 2003). Gates suffered
no prejudice from his allegedly illegal sentence but, to the contrary, benefitted from it. As a result, he is
unable to circumvent the prohibition of the aforementioned time bar by now claiming that the circuit court
ordered him to serve an illegal sentence from which he benefitted following his conviction in 1991.
¶9.
We accordingly find, for the foregoing reasons, that the lower court did not err in denying Gate’s
petition for post-conviction collateral relief.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY DENYING POSTCONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO UNION COUNTY.
KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., COCNUR.
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