Bennie E. Lacy v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-00917-COA
BENNIE E. LACEY A/K/A BENNIE E. LACY
A/K/A BENNY E. LACEY A/K/A BANDIGO
LACEY A/K/A BENDO A/K/A BENNIE
EVERETTE LACEY
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
05/08/2008
HON. ROBERT WALTER BAILEY
WAYNE COUNTY CIRCUIT COURT
BENNIE E. LACEY (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
APPEAL DISMISSED - 06/09/2009
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
Bennie E. Lacey appeals the Wayne County Circuit Court’s dismissal of his motion
for post-conviction relief. Finding that this Court lacks jurisdiction, we dismiss the appeal.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2.
Lacey was indicted on January 16, 1991, (Cause No 8343) of selling a Schedule II
controlled substance.1 Lacey was subsequently convicted at a jury trial, and a sentencing
hearing was held on April 12, 1991. At the hearing, the circuit court determined that Lacey
was eligible for enhanced sentencing as a habitual offender under Mississippi Code
Annotated sections 99-19-81 (1972) and 41-29-147 (Supp. 1989) and sentenced him to thirty
years in the custody of the Mississippi Department of Corrections without parole. His two
previous felony convictions were for grand larceny on July 21, 1980 (Cause No. 7528), and
the sale of a Schedule IV controlled substance on July 18, 1984 (Cause No. 7754). Lacey
had pleaded guilty to both felonies.
¶3.
On direct appeal, the Mississippi Supreme Court affirmed Lacey’s conviction and
sentence on February 27, 1994. See Lacey v. State, 632 So. 2d 958 (Miss. 1994). Lacey
filed a motion for post-conviction relief with the supreme court on July 22, 1994, which was
subsequently denied. On December 14, 2004, the supreme court denied another motion for
post-conviction relief filed by Lacey.
¶4.
On March 6, 2008, Lacey filed a motion with the Circuit Court of Wayne County to
vacate his illegal sentence enhancement. In the motion, Lacey claimed that the indictment
for the sale of a Schedule IV controlled substance (Cause No. 7754) did not include his
name; therefore, his defense counsel’s performance was deficient for allowing such evidence
to be offered.2 On May 8, 2008, the circuit court dismissed Lacey’s motion for post-
1
Although the specific statute under which Lacey was indicted and convicted is not
contained in the record, we note that the statute is Mississippi Code Annotated section 4129-139 (Supp. 1989).
2
The indictment in Cause No. 7754 charged “Adam Lacey” and “Bandingo Lacey.”
A handwritten notation on the indictment indicated that “Bandingo” had two aliases “Bendo”
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conviction relief finding his claim to be procedurally barred as it was not filed within three
years of the ruling by the Mississippi Supreme Court on Lacey’s direct appeal.
STANDARD OF REVIEW
¶5.
In reviewing a decision to dismiss a motion for post-conviction relief, we will not
disturb a circuit court’s “factual findings unless they are found to be clearly erroneous.”
Williams v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004). “However, where
questions of law are raised[,] the applicable standard of review is de novo.” Id.
¶6.
Mississippi Code Annotated section 99-39-5(2) (Rev. 2007) states that a motion for
post-conviction relief “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[.]” The supreme
court ruled on Lacey’s appeal on February 27, 1994. Lacey’s latest motion for postconviction relief was filed on March 6, 2008, more than fourteen years after the supreme
court’s ruling on his direct appeal. Therefore, the circuit court found that Lacey’s motion
for post-conviction relief was procedurally barred.
¶7.
We find, however, that neither the trial court nor this Court has jurisdiction over
Lacey’s most recent motion, as he did not first obtain permission from the Mississippi
Supreme Court to seek post-conviction relief. Mississippi Code Annotated section 99-39-7
(Rev. 2007) provides that where a “prisoner’s conviction and sentence have been appealed
to the [S]upreme [C]ourt of Mississippi and there affirmed or the appeal dismissed,” his
and “Benny E. Lacey.” While Lacey contends that the indictment was defective, he makes
no claim that he was not, in fact, the person who pleaded guilty to the indictment or served
the sentence of incarceration.
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motion for post-conviction relief “shall not be filed in the trial court until the motion shall
have first been presented to a quorum of the justices of the supreme court[.]” Failure to
obtain permission from the supreme court deprives the trial court and this Court of
jurisdiction. See Crosby v. State, 982 So. 2d 1003, 1005 (¶6) (Miss. Ct. App. 2008) (trial
court lacked jurisdiction to entertain the prisoner’s motion for post-conviction relief as the
prisoner failed to comply with section 99-39-7; appeal dismissed for lack of jurisdiction);
Robinson v. State, 968 So. 2d 981, 981-82 (¶2) (Miss. Ct. App. 2007) (same); Jackson v.
State, 915 So. 2d 484, 485 (¶4) (Miss. Ct. App. 2005) (same); Meshell v. State, 832 So. 2d
1244, 1245 (¶5) (Miss. Ct. App. 2002) (same); see also State v. Read, 544 So. 2d 810, 813
(Miss. 1989) (finding that county court did not have jurisdiction over the motion for postconviction relief, which was filed as a petition for writ of habeas corpus, where the prisoner
did not first obtain permission to seek post-conviction relief from supreme court pursuant
to section 99-39-7).
¶8.
Since Lacey’s conviction and sentence were affirmed on direct appeal, he was
required to seek leave of the Mississippi Supreme Court to file a motion for post-conviction
relief in the circuit court pursuant to Mississippi Code Annotated section 99-39-7. We find
no evidence to suggest that he did so. Therefore, both the circuit court and this Court lack
jurisdiction to consider Lacey’s motion. Accordingly, we dismiss the appeal.
¶9.
THE APPEAL IS DISMISSED.
ASSESSED TO WAYNE COUNTY.
ALL COSTS OF THIS APPEAL ARE
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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