Marion Edwin Thompson v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 97-CA-01136 COA
MARION EDWIN THOMPSON
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
08/25/1997
TRIAL JUDGE:
HON. RICHARD WAYNE MCKENZIE
COURT FROM WHICH APPEALED: PERRY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
HERBERT H. KLEIN
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
DISTRICT ATTORNEY:
E. LINDSAY CARTER
NATURE OF THE CASE:
CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:
POST-CONVICTION RELIEF DENIED
DISPOSITION:
AFFIRMED - 01/26/99
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
3/24/99
EN BANC
THOMAS, P.J., FOR THE COURT:
¶1. Marion Edwin Thompson appeals the denial of his motion for post-conviction relief. Aggrieved of this
ruling, he appeals to this Court on the following grounds:
I. THE SENTENCING ORDER HEREIN REFLECTS CONSECUTIVE SENTENCES, AND A
COMMITMENT ORDER DRAFTED BY ALFRED LOTT, PERRY COUNTY CIRCUIT
COURT CLERK REFLECTS CONCURRENT SENTENCES. WHILE ANOTHER
COMMITMENT ORDER WAS EXECUTED AND SUBSEQUENTLY FILED, THERE IS
SOME AMBIGUITY IN THE SENTENCING OF THE DEFENDANT;
II. DEFENDANT'S PAROLE ELIGIBILITY WOULD HAVE BEEN EXACTLY THE SAME IF
HE WOULD HAVE BEEN TRIED, CONVICTED, AND SENTENCED TO LIFE IN PERRY
COUNTY. THEREFORE, THE PLEA "BARGAIN" IS NO BARGAIN AT ALL IF THE
RECOMMENDATION WAS ACTUALLY CONSECUTIVE;
III. THE DEFENDANT RELIED ON THE ERRONEOUS ADVICE OF HIS ATTORNEY AND
ASSISTANT DISTRICT ATTORNEY GLENN L. WHITE THAT HE WOULD RECEIVE A
CONCURRENT SENTENCE; AND
IV. THE CIRCUIT COURT OF GEORGE COUNTY NO LONGER HAD JURISDICTION TO
CHANGE OR MODIFY THE ORIGINAL SENTENCE. IT IS CLEAR THAT THE
PREVIOUSLY IMPOSED SENTENCE CANNOT BE MODIFIED, AS SAID SENTENCE WAS
IMPOSED BY A JURY.
¶2. As some of the issues above are procedurally barred, we will address only the issue of whether
Thompson's sentence in Perry County was to run concurrently or consecutively to a sentence he received in
George County. Holding this assignment of error to be without merit, we affirm the judgment of the circuit
court.
FACTS
¶3. Thompson committed two separate crimes of armed robbery in George County and Perry County
Mississippi. Thompson was tried and convicted in George County on August 22, 1983 and sentenced to a
term of life imprisonment in the Mississippi Department of Corrections. Thereafter, Thompson entered a
plea of guilty to the charge of armed robbery in Perry County and received a sentence of twenty years in the
Mississippi Department of Corrections. The order signed on September 20, 1983 stated that the twenty
year sentence was to run consecutive to Thompson's prior conviction in George County. On October 13,
1983, the Perry County Circuit Court Clerk executed a commitment order which stated that the twenty
year sentence was to run concurrent with the sentence in George County. Thompson filed a motion for
post-conviction relief, which was denied on January 28, 1987. See Thompson v. State, 501 So. 2d 430
(Miss. 1987).
¶4. Subsequent to consideration of parole on the George County sentence, Thompson realized that the
sentences were running consecutively when provided a time sheet by the Mississippi Department of
Corrections. On June 25, 1997, Thompson filed a motion to clarify the Perry County order, stating that
through error, inadvertence and omission, the State of Mississippi incorrectly recommended and indicated
that the above sentences were to run consecutively. Attached to this motion was an affidavit of Glenn L.
White, the assistant district attorney who worked with Thompson on his guilty plea. This affidavit stated
that, "to the best of my recollection, and based on information and belief, the recommendation of sentence
in exchange for an entry of a plea of guilty was twenty (20) years in the MDOC, to run concurrent with the
prior sentence in George County."
¶5. On August 4, 1997, the Circuit Court of Perry County, Judge McKenzie presiding, the judge who
executed the original order, held an evidentiary hearing. During the hearing Glenn White testified differently
than his previous affidavit. White testified that the recommendation of the State was that the sentence was to
run consecutive. Although not made part of the official record, and we do not consider this on appeal, the
record of the original guilty plea put in Thompson's record excerpts, supports White's assertion. The
portion of the transcript in which the parties discussed whether the sentence was to run consecutively or
concurrently provides in part:
By White: If it please the Court, I think the Order should specify that it would run consecutive with the
sentence in George County.
By the Court: Absolutely.
By White: -and let that be reflected in the Court's Order so there won't be anyBy the Court: There's no doubt. (To Mr. Thompson) You don't think it's going to run concurrently, do
you? You didn't believe that, I hope. Anything further?
(NO RESPONSE)
By the Court: Very well, let that be the Order of the Court.
In the order handed down on August 25, 1997, Judge McKenzie stated that based on case precedent, the
testimony, and the evidence, Thompson's motion to clarify the order was not meritorious.
I.
ANALYSIS
¶6. At the outset we must note that issues regarding the voluntariness of Thompson's guilty plea are
procedurally barred. Miss. Code Ann. § 99-39-23 (6) (Supp. 1998). Excepted from this bar are "cases in
which the prisoner claims that his sentence has expired or his probation, parole or conditional release has
been unlawfully revoked." Id.
¶7. In the case sub judice the circuit court sat without a jury to determine whether Thompson's second
conviction was to be served concurrently or consecutively. The standard of review in such cases is well
settled. We "will not set aside findings of a trial court sitting without a jury unless such findings are clearly
erroneous." Schmitt v. State, 560 So. 2d 148, 151 (Miss. 1990) (citing Reynolds v. State, 521 So. 2d
914, 918 (Miss. 1988); Merritt v. State, 517 So. 2d 517, 520 (Miss. 1987)).
¶8. Mississippi Code Annotated § 99-19-21 instructs a trial court on sentencing when the defendant is
sentenced on two or more convictions. The legislature amended Miss. Code. Ann. § 99-19-21 effective
March 14, 1983. Thompson was sentenced September 20, 1983; however, Thompson was indicted for
the armed robbery in Perry County on January 31, 1983. The Mississippi Supreme Court has held that "a
defendant must be sentenced under statutes in effect at the time of the alleged offense." Harper v. State,
463 So. 2d 1036, 1041 (Miss. 1985). Prior to its amendment Miss. Code Ann. § 99-19-21 stated:
"When a person is sentenced to imprisonment on two or more convictions, the imprisonment on the
second, or each subsequent conviction, shall commence at the termination of the imprisonment for
the preceding conviction, and the sentence ought to so specify. . . ." Tate v. State, 455 So. 2d 1312,
1312-13 (Miss. 1984) (quoting Miss. Code Ann. § 99-19-21 (1972)). This section was "construed so
that, in the absence of language affirmatively indicating that sentences will run concurrently, the second term
does not begin until the first has been completed." Tate, 455 So. 2d at 1313 (citing Ball v. State, 437 So.
2d 423, 426 (Miss. 1983); Maycock v. Reed, 328 So. 2d 349, 351 (Miss. 1976); Pickett v. Thomas,
209 So. 2d 192, 193 (Miss. 1968)).
¶9. The Mississippi Supreme Court has held that an order of a trial court imposing a sentence is controlling.
Anderson v. State, 288 So. 2d 852, 855 (Miss. 1974). However, any ambiguity in an order must be
resolved in favor of the accused. Id.
¶10. At the time Thompson committed the crime, Miss. Code Ann. § 99-19-21 required that separate
sentences be served consecutively unless the court expressly ordered they be served concurrently. If,
however, there was ambiguity in the sentencing order the Mississippi Supreme Court has held that the
ambiguity must be resolved in favor of the accused. Anderson, 288 So. 2d at 855. However, there is no
ambiguity in the Perry County sentencing order. The order clearly states that Thompson was "to serve a
term of twenty (20) years at the Mississippi Department of Corrections to run consecutive with a prior
sentence in George County, Mississippi." (emphasis added). We cannot say that the circuit court's judgment
in this instance was clearly erroneous. We find no merit to this assignment of error.
¶11. THE JUDGMENT OF THE PERRY COUNTY CIRCUIT COURT OF DENIAL OF POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
PERRY COUNTY.
BRIDGES, C.J., McMILLIN, P.J., COLEMAN, DIAZ, KING, PAYNE AND SOUTHWICK,
JJ., CONCUR. IRVING AND LEE, JJ., NOT PARTICIPATING.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
