Sammie Durant v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-01839-COA
SAMMIE DURANT
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
9/1/2004
HON. JAMES T. KITCHENS, JR.
LOWNDES COUNTY CIRCUIT COURT
SAMMIE DURANT (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
SUMMARILY DISMISSED APPELLANT’S
MOTION FOR POST-CONVICTION RELIEF
AFFIRMED - 10/25/2005
BEFORE LEE, P.J., MYERS AND BARNES, JJ.
MYERS, J., FOR THE COURT:
¶1.
Sammie Durant pled guilty in the Circuit Court of Lowndes County to possession of a controlled
substance with the intent to distribute. He was sentenced to ten years in the custody of the Mississippi
Department of Corrections with five years to serve and five years suspended. Thereafter, Durant filed a
motion for post-conviction relief. The trial judge denied the motion without a hearing, and Durant has
appealed.
FACTS
¶2.
On November 12, 1987, the Lowndes County grand jury indicted Sammie Durant for possession
of a controlled substance with the intent to distribute. On May 11, 1988, Durant pled guilty to the charges
set forth in the indictment, and according to Durant, he was sentenced to ten years with five suspended.
On June 15, 2004, over sixteen years after Durant pled guilty to said charges, Durant filed a pro se motion
for post-conviction relief. Durant raised several issues in his motion; however, the trial court dismissed said
motion for being time barred according to Mississippi Code Annotated § 99-39-5 (Rev. 2000). Durant
appeals the trial court’s dismissal. Durant is currently incarcerated in the Federal Correction Institution in
Memphis, Tennessee.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶3.
Post-conviction collateral relief is “to provide prisoners with a procedure, limited in nature, to
review those objections, defenses, claims, questions, issues, or errors which in practical reality could not
have been or should not have been raised at trial or on direct appeal.” Miss. Code Ann. § 99-39-3 (2)
(Rev. 2000). Post-conviction relief is not the same or a substitute for a direct appeal.
STANDARD OF REVIEW
¶4.
This Court will not disturb the trial court’s factual findings, when reviewing a decision to deny a
petition for post-conviction relief, unless the findings are found to be clearly erroneous. Brown v. State,
731 So.2d 595, 598 (¶6) (Miss. 1999). However, the applicable standard of review is de novo where
questions of law are raised. Id.
¶5.
The Lowndes County Circuit Court dismissed Durant’s post-conviction reliefmotion for being time
barred in accordance with Mississippi Code Annotated § 99-39-5 (2) (Rev. 2000). We agree with the
circuit court’s ruling. Durant pled guilty on May 11, 1988, and he waited over sixteen years to file his
motion. Furthermore, Durant is currently incarcerated and serving time for a subsequent federal conviction
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in which the offense has not been identified in Durant’s brief or in the record. Consequently, it appears
Durant has already served the sentence for which he now complains.
¶6.
A major problem with Durant’s petition is that he has already served his sentence. Even though
this is not made expressly clear in the record, there are assertions made in the briefs. The briefs go further
to discuss that Durant is currently incarcerated for a federal crime. Assertions in briefs are not sufficient
for this Court to base judgments. Shaw v. State, 803 So.2d 1282, 1284 (¶7) (Miss. Ct. App. 2002);
Burnett ex. Rel Islam v. Burnett, 792 So.2d 1016 (¶8) (Miss. Ct. App. 2001). However, Durant was
sentenced on May 11, 1988, by the Circuit Court in Lowndes County, to ten years with five suspended,
leaving a total of five years to serve. Therefore, Durant’s sentence would have expired in May of 1993.
¶7.
Post-conviction relief for defendants applies solely to a prisoner who is actually in the custody of
the State under a sentencing order from a Mississippi Court, according to Mississippi Code Annotated §
99-39-5 (Rev. 2000). Isaac v. State, 793 So.2d 688, 690 (¶7) (Miss. Ct. App. 2001). Durant is
currently a prisoner in a federal prison and is no longer serving his sentence in the state’s system as required
by statute. Id. at 691 (¶10). Therefore, the appropriate remedy for Durant does not fall within
Mississippi’s post-conviction relief statute. See Miss. Code Ann. § 99-39-5 (Rev. 2000).
¶8.
Being that Durant is no longer in custody in Mississippi, and he is time barred from raising a post-
conviction relief claim, we find no need to discuss the issues Durant raised in his brief. Accordingly, we
find that the trial judge properly dismissed Durant’s motion.
¶9.
THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING
MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO LOWNDES COUNTY.
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KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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