Antoine Plump v. State of Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-CA-00898-SCT
ANTOINE PLUMP
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
05/14/96
HON. FRANK G. VOLLOR
WARREN COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: PAT FLYNN
MARTIN G. GILMORE
CIVIL - POST CONVICTION RELIEF
AFFIRMED - 11/6/97
12/1/97
BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.
SMITH, JUSTICE, FOR THE COURT:
On July 13, 1995, Antoine Plump entered a plea of guilty to one count of armed robbery. Following a
guilty plea hearing, Plump was sentenced by the Warren County Circuit Court to six years, without
the eligibility for parole, in the custody of the Mississippi Department of Corrections. Plump was
additionally ordered into a drug and alcohol treatment program.
On December 5, 1995, Plump filed a petition for post-conviction relief in the Circuit Court of Warren
County. In his petition, Plump alleged that (1) his guilty plea was not voluntarily, intelligently, and
knowingly made; (2) he was not given a fair competency hearing; (3) he received ineffective
assistance of counsel; and (4) his right to a speedy trial was violated. The trial court summarily
dismissed the petition and denied relief. Plump now appeals to this Court from the denial of his
petition.
FACTS
On November 2, 1994, Antoine Plump was indicted for armed robbery by the Warren County Grand
Jury. On July 13, 1995, Plump withdrew his original plea of not guilty and entered a plea of guilty to
the crime of armed robbery. After a guilty plea hearing, the trial court accepted the guilty plea and
sentenced Plump to serve six years, without the eligibility for parole, in the custody of the Mississippi
Department of Corrections.
On December 5, 1995, Plump filed a Post Conviction Motion to Withdraw Guilty Plea and Set Aside
Sentence and Conviction. In his motion, Plump alleged that (1) his plea agreement and guilty plea
were not voluntarily, intelligently, and knowingly made because he had been diagnosed as
schizophrenic; (2) he was deprived of a full and complete competency hearing which allegedly would
have revealed that he was incompetent to stand trial; (3) he received ineffective assistance of counsel;
and (4) his right to a speedy trial was violated.
On May 14, 1996, the trial court dismissed Plump's Motion to Withdraw Guilty Plea and Set Aside
Sentence and Conviction and denied all relief. After reviewing the twelve page psychological report
and the transcript of the guilty plea hearing, the trial court found that Plump was not entitled to any
relief.
On June 26, 1996, Plump filed with the trial court his Notice of Appeal to this Court. However, on
August 1, 1996, Plump filed with the trial court a Notice of Withdrawal of Appeal to have his appeal
to this Court withdrawn or dismissed, but no action was taken on this motion by the trial court. Then,
on January 24, 1997, the clerk of the Supreme Court mailed notice to Plump that his appeal was
deficient in that it lacked an Appellant's Brief, and pursuant to Miss. R. App. P. Rule 2(a)(2), the
appeal would be dismissed if the deficiency was not corrected within 14 days. Plump filed his brief on
February 13, 1997.
Aggrieved, Plump appeals to this Court, citing the following issues:
I. WHETHER THE TRIAL COURT ERRED BY ENTERING INTO EVIDENCE THE
TESTIMONY OF STATE'S WITNESSES COLEMAN AND EDWARD.
II. WHETHER THE TRIAL COURT ERRED BY IMPOSING A TIME LIMITATION
AND LIMITING THE CROSS EXAMINATION OF COLEMAN AND EDWARD AS
TO THEIR PRIOR CONVICTIONS.
III. WHETHER THE TRIAL COURT DISCRIMINATED AGAINST PLUMP BY
ALLOWING THE STATE TO EXERCISE PEREMPTORY CHALLENGES FOR THE
PURPOSE OF STRIKING MEMBERS OF PLUMP'S RACE FROM THE JURY IN
VIOLATION OF BATSON V. KENTUCKY.
DISCUSSION OF LAW
I. WHETHER THE TRIAL COURT ERRED BY ENTERING INTO EVIDENCE THE
TESTIMONY OF STATE'S WITNESSES COLEMAN AND EDWARD.
II. WHETHER THE TRIAL COURT ERRED BY IMPOSING A TIME LIMITATION
AND LIMITING THE CROSS EXAMINATION OF COLEMAN AND EDWARD AS
TO THEIR PRIOR CONVICTIONS.
III. WHETHER THE TRIAL COURT DISCRIMINATED AGAINST PLUMP BY
ALLOWING THE STATE TO EXERCISE PEREMPTORY CHALLENGES FOR THE
PURPOSE OF STRIKING MEMBERS OF PLUMP'S RACE FROM THE JURY IN
VIOLATION OF BATSON V. KENTUCKY.
After reviewing in full the above issues, it is our conclusion that all of the above issues are without
merit. First, the issues raised by Plump on appeal were not raised before the trial court, and this
Court has repeatedly held that "[a] trial court cannot be put in error on a matter not presented to the
court for decision." Chase v. State, 645 So. 2d 829, 846 (Miss. 1994), cert. denied, 515 U.S. 1123
(1995); Jones v. State, 606 So. 2d 1051, 1058 (Miss. 1992); Crenshaw v. State, 520 So. 2d 131,
134-35 (Miss. 1988). Thus, Plump is procedurally barred from raising these issues on appeal.
Furthermore, even if these issues were raised before the trial court, they would have been found to be
without merit. All of the issues raised by Plump on appeal concern trial issues, and in the present
case, Plump entered a plea of guilty. Thus, there is no evidence in the record that a trial was held that
could provide a basis for these issues in a motion for post-conviction relief at the trial court level or
on appeal. This Court has stated:
We have on many occasions held that we must decide each case by the facts shown in the
record, not assertions in the brief, however sincere counsel may be in those assertions. Facts
asserted to exist must and ought to be definitely proved and placed before us by a record,
certified by law; otherwise, we cannot know them.
Wallace v. State, 607 So. 2d 1184, 1189 (Miss. 1992) (quoting Mason v. State, 440 So. 2d 318,
319 (Miss. 1983)). The record in this case reveals that the underlying events necessary to support the
issues raised by Plump never took place. As a result, we find all of the issues raised by Plump are
without merit.
Additionally, it is the opinion of this Court that Plump should not have been allowed to appeal the
decision of the trial court because his Notice of Appeal was not timely filed. Miss. R. App. P. Rule
4(a) provides that:
In a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from
a trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed with
the clerk of the trial court within 30 days after the date of entry of the judgment or order
appealed from.
Miss. R. App. P. Rule 4(a). In the present case, the trial court's order was entered on May 14, 1996,
and Plump did not file his Notice of Appeal until June 26, 1996. Therefore, this appeal should have
been dismissed pursuant to Miss. R. App. P. Rule 2(a)(1).
CONCLUSION
We affirm the trial court's denial of Plump's petition for post-conviction relief because all of the issues
raised by Plump on appeal are procedurally barred and, alternatively, all issues raised by Plump on
appeal are without merit.
DENIAL OF POST-CONVICTION RELIEF AFFIRMED.
LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS
AND MILLS, JJ., CONCUR.
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