Alger Adam Retherford v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1998-CP-01342-COA
CONSOLIDATED WITH
NO. 1998-CP-01345-COA
ALGER ADAM RETHERFORD
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
08/18/1998
TRIAL JUDGE:
HON. R. I. PRICHARD III
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
PRO SE
FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY:
RICHARD LAWRENCE DOUGLASS
NATURE OF THE CASE:
CIVIL - POST CONVICTION RELIEF
TRIAL COURT DISPOSITION:
08/18/1998: PETITIONER'S MOTION TO VACATE
JUDGMENT OF CONVICTION BE, AND THE SAME
HEREBY IS DISMISSED. IT IS FURTHER ORDERED
AND ADJUDGED THAT PETITIONER BE, AND HE
HEREBY IS ASSESSED THE SUM OF $300 FOR HAVING
CONTINUALLY FILED FRIVOLOUS AND REDUNDANT
MOTIONS.
DISPOSITION:
AFFIRMED - 09/07/99
MOTION FOR REHEARING FILED: 09/21/99; denied 5/23/2000
CERTIORARI FILED:
6/7/2000; denied 8/24/2000
MANDATE ISSUED:
9/15/2000
BEFORE KING, P.J., IRVING, AND LEE, JJ.
LEE, J., FOR THE COURT:
¶1. Alger Adam Retherford entered pleas of guilty to the charges of armed robbery and murder. Retherford
challenges his convictions under the post conviction collateral relief act. Retherford filed two pro se motions
to set aside conviction and sentencing. Retherford was denied relief by the trial court under his second
motion to set aside conviction and sentence. Feeling aggrieved by this decision Retherford filed his pro se
brief perfecting his appeal and argues the following issues: (1) whether the trial court erred in denying the
motion filed by Retherford as procedurally barred due to a failure to comply with the statute of limitations
and res judicata, (2) whether the trial court contravened public policy in denying Retherford's motion to set
aside conviction and sentence, (3) whether the trial court denied Retherford a liberty interest, (4) whether
the trial court exceeded its statutory authority in sentencing, and (5) whether the trial judge erred in ordering
Retherford to pay a three hundred dollar fine for filing frivolous motions. Finding these issues to be without
merit, this Court affirms the decision of the trial court.
FACTS
¶2. In 1976, Retherford entered pleas of guilty to the charges of armed robbery and murder. Retherford
was sentenced to serve a term of 80 years in the Mississippi State Penitentiary at Parchman, Mississippi for
the crime of armed robbery, and was sentenced to serve a term of life imprisonment to run consecutively
after the sentence imposed for the armed robbery conviction for murder. Although we do not have a copy
of the first motion to vacate order of conviction and set aside sentence, the trial judge made a finding of fact
in its order overruling motion to vacate and set aside sentence dated July 19, 1994, which indicates that the
aforementioned motion was filed July 7, 1994. Additionally, Retherford concedes in his subsequent motion
to vacate sentence that he had previously sought relief in the Circuit Court of Pearl River County.
Retherford further stated in his subsequent motion that in his first motion he sought relief on the following
basis: "(a) the trial court did not advise him of his constitutional right to the privilege against self-incrimination
, and (b) the trial court did not advise him of his constitutional right to confront and cross-examine adverse
witnesses." In reference to the first motion filed by Retherford the trial court stated the following reasons for
dismissing said motion:
(1) Section 99-39-5(2), Mississippi Code of 1972, annotated and amended, requires that in case of a
guilty plea, a motion for relief under the Mississippi Uniform Post Conviction Collateral Relief Act
must be filed within three (3) years after the entry of the Judgment of Conviction. This court
specifically finds that the statute of limitations contained in said statute obviously began to run from the
date of enactment of said statute and, therefore, specifically finds that three (3) years have elapsed
since said section was enacted, said date said statute became effective being April 17, 1984, and the
court finds that this motion was, in fact, filed more than ten years after the enactment of said statute.
The court specifically finds that the movant's motion to vacate order of conviction and sentence is
barred by the statute of limitations, as set out in Section 99-39-5(2).
(2) The court finds that all of the allegations in said motion are matters which should have been raised
on appeal to the Mississippi State Supreme Court . . . . Further, from close examination of the entire
record in this matter, the court finds that said allegations in the motion are not well taken and are
contradictory to the transcript of the sworn testimony given by the defendant at his arraignment and
sentencing and that said motion plainly appears on its face, because of the prior proceeding in this
case, that the movant would not be entitled to any relief, even if this matter were not barred by the
statute of limitations.
Although the trial judge held that the motion to set aside conviction and sentence had no merit and was time
barred, he did hold that Retherford's argument for reduction of sentence was well taken, and the sentence
was reduced from 80 years to 53.9 years. On July 16, 1998, Retherford filed a second pro se motion to
vacate and set aside conviction and sentence.
¶3. In the motion filed on July 16, 1998, Retherford argued that the "circuit court" committed plain error
when exceeding its statutory authority in sentencing under MCA § 99-19-3 (1972) without first securing a
legal conviction, and contravened the public policy of Mississippi, as well as Retherford's right to equal
protection and due process of law guaranteed by amendment fourteen to the United States Constitution,
and Article III, Section 14 to the Mississippi Constitution of 1890." Retherford elaborated on his argument
by contending that his pleas of guilty were unintelligent and involuntary. Additionally, Retherford argued that
he was not advised of fundamental constitutional rights, more specifically, Retherford's privilege against
compulsory self-incrimination and to confront and cross-examine adverse witnesses. Furthermore,
Retherford argued that since his pleas were not made voluntarily and intelligently there was no legal
conviction and, therefore pursuant to Mississippi Code Annotated Section 99-19-3 the trial court had no
authority to impose a sentence. On August 20, 1998, the court entered an order dismissing the
aforementioned motion.
¶4. The trial judge followed the logic it had previously enumerated in its aforementioned order in 1994, and
held that the successive motion filed by Retherford was procedurally barred under the post conviction
collateral relief act. The motion was barred under both the statute of limitations and res judicata. As a
result of the second motion, the trial judge determined that said motion was frivolous and Retherford was
sanctioned in the sum of three hundred dollars. On September 4, 1998, Retherford filed his motion to
appeal in former pauperis and said order was granted.
I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FILED BY
RETHERFORD AS PROCEDURALLY BARRED DUE TO A FAILURE TO COMPLY WITH
THE STATUTE OF LIMITATIONS AND RES JUDICATA.
II. WHETHER THE TRIAL COURT CONTRAVENED PUBLIC POLICY IN DENYING
RETHERFORD'S MOTION TO SET ASIDE CONVICTION AND SENTENCE.
III. WHETHER THE TRIAL COURT DENIED RETHERFORD A LIBERTY INTEREST.
¶5. The above referenced issues will be addressed together since they all ultimately result in the same
disposition. This Court will briefly summarize all of the arguments presented by Retherford in issues one
through three. In issue one, Retherford contends that there are exceptions to the procedural time bars, and
states, "[f]or example, this Court has repeatedly held that '. . . if a circuit court exceeds its statutory
authority in sentencing and fundamental constitutional rights may be involved, [and] that court has violated
one of the defendant's fundamental constitutional rights, the claim will be exempt from the procedural time
bar.'" Retherford further argues that this applies to the doctrines of res judicata and collateral estoppel and,
therefore, he is not procedurally barred from pursuing his argument. In issue two, Retherford contends that
the trial court's disposition of the matter was against the public policy of Mississippi since he was not legally
convicted. The trial court exceeded its statutory authority when it imposed a sentence without a legal
conviction. In issue three, Retherford contends that since Mississippi Code Annotated Section 99-19-3
contains the word "shall", the circuit court could not impose a sentence without a legal conviction, and,
therefore, he was denied a liberty interest. This Court must now determine whether procedural bars under
the post conviction collateral relief act are indeed applicable to the case at bar; however, we are faced with
an incomplete record for our review on appeal.
¶6. In Ivy v. State, 666 So. 2d 445, 449 (Miss. 1995), the trial court held that Ivy, a pro se litigant, was
denied a remedy because Ivy had sought relief through an improper form of action. Ivy argued that as a pro
se litigant he should not be held to the same standards as represented parties, and the court should have
provided a proper remedy. Id. The Mississippi Supreme Court espoused the following standard applicable
to pro se litigants from prior case law which states that "[p]ro se parties should be held to the same rules of
procedure and substantive law as represented parties." Id. (citing Dethlefs v. Beau Maison Development
Corp., 511 So. 2d 112, 118 (Miss.1987)). However, if a prisoner is seeking post-conviction relief and is
proceeding pro se, in the court's discretion, we will "credit not so well pleaded allegations so that a
prisoner's meritorious complaint may not be lost because inartfully drafted." Id. In the case at bar, our focus
is not primarily on the manner in which the briefs filed by Retherford have been drafted, but, we are faced
with the fact that we have received an incomplete record for our review. Retherford has failed to include a
copy of his first motion to vacate and set aside conviction and sentence. As the appellant, Retherford had
the duty to provide a copy of the record of the trial proceedings wherein error is claimed and brought
before this Court. Jackson v. State, 684 So. 2d 1213, 1226 (Miss. 1996). Without the complete record
being before this Court we are not required to make a ruling on the merits of his claim. However, with the
facts that have been provided in the record, it is apparent that Retherford is procedurally barred on his
successive petition for post conviction relief pursuant to Mississippi Code Annotated Section 99-39-23(6)
(Supp. 1998) and Section 99-39-5(2) (Supp. 1998).
¶7. Retherford appears to have raised the same arguments on appeal as those raised in his prior petition for
post conviction relief. In the trial court's order dismissing motion to vacate and set aside conviction and
sentence filed on August 20,1998, the court made findings of fact as follows:
In this his [Retherford's] second attempt to challenge his conviction on the charge of the armed
robbery of Guy Lindsey, Petitioner alleges once again a deprivation of his "fundamental constitutional
rights." Specifically, Petitioner alleges:
a) the trial court did not advise him of the privilege against compulsory self-incrimination;
b) the trial court did not advise him of his right to confront and cross-examine adverse witnesses;
c) that his pleas of "guilty" to the charges of armed robbery and murder were, therefore, entered
involuntarily and unintelligently; and
d) that this Court committed plain error by accepting Petitioner's guilty pleas on both charges.
Retherford argues that pursuant to the aforementioned arguments and under Mississippi Code Annotated
Section 99-19-3 (Supp. 1998) he is entitled to the relief sought which is to have his conviction and sentence
set aside.
¶8. There appear to be no additional contentions made by Retherford in his second petition for post
conviction relief. Retherford's first motion was dismissed by the trial judge as being time barred. As
aforementioned, Retherford's second motion was denied by the trial judge as time barred and res judicata.
"Any such points raised in the application which have been previously litigated and decided at trial or on
appeal are res judicata and barred." Edwards v. Thigpen, 433 So. 2d 906, 907 (Miss. 1983) (citations
omitted). Since Retherford argued the same contentions in both petitions and the judge had ruled on the
merits as to the first petition, he is now procedurally barred pursuant to the doctrine of res judicata. Our
law presumes that the judgment of the trial court is correct, and the appellant has the burden of
demonstrating some reversible error to this Court. Pierre v. State, 607 So. 2d 43, 48 (Miss. 1992).
However, when one appeals a matter and is attempting to prove to this Court that the trial court has
committed reversible error it must be done within the confines of statutory, case, and procedural law.
Retherford failed to follow the mandated procedures and in doing so he is now barred from arguing
reversible error by the trial court. In Smith v. State, 434 So. 2d 212, 220 (Miss. 1983), the Mississippi
Supreme Court stated as follows:
The fair and orderly administration of justice dictates that a person accused of a crime be afforded the
opportunity to present his claims before a fair and impartial tribunal. It does not require that he be
given multiple opportunities to "take a bite at the apple." Likewise, the orderly administration of justice
does not require this Court to "lead a defendant by the hand" through the criminal justice system. It is
this Court's responsibility to provide a meaningful opportunity for defendant to raise his claims and
have them adjudicated.
Retherford has been given this opportunity.
¶9. The exceptions under Mississippi Code Annotated Section 99-39-23(6) only allow the filing of a
successive writ if the argument presented within the writ falls under one of the exceptions and has not been
previously argued and a decision rendered on the merits by the trial court. In Sneed v. State, 722 So. 2d
1255, 1256 (Miss. 1998), Sneed had filed two petitions for post-conviction relief. The first petition was
denied. Id. Sneed filed a motion to reconsider his post-conviction motion and again it was denied. Id. It
was not until after the second denial that Sneed proceeded with the appeal process. Id. The supreme court
held that since Sneed failed to file a timely appeal after the first petition was denied his appeal on the
successive writ was out-of-time, and he was barred from bringing a successive motion. Id.
¶10. Similar to Sneed, Retherford did not pursue an appeal after the court denied his first petition. Since
Retherford presented the same arguments in his second petition, he was in effect requesting the trial court to
reconsider its prior judgment. When the court failed to reverse its prior decision, Retherford filed his appeal.
Just as in Sneed, Retherford's appeal is out-of-time. This Court, therefore, finds that the trial judge was not
in error in dismissing Retherford's successive petition as res judicata.
¶11. The trial judge also was correct in his holding relative to time-bars being applicable to the case at bar.
Retherford's first motion was time barred since it was filed approximately ten years after the passage of
Section 99-39-5(2). This statute imposes a three year period and although the act was not in effect at the
time of Retherford's guilty pleas, Retherford had three years from the date of the enactment of the statute on
April 17, 1984, in which to file a petition for post conviction relief. Jackson v. State, 506 So.2d 994, 995
(Miss.1987). Retherford exceeds this deadline for filing under the statute by approximately seven years.
Retherford did not file a petition seeking post-conviction relief until July 7, 1994. In Campbell v. State,
611 So. 2d 209, 210 (Miss. 1992), the Mississippi Supreme Court noted that Section 99-39-5(2)
provides that the time bar would not have originally been imposed if [Retherford] demonstrated that:
(1) there has been an intervening decision of this Court or the U.S. Supreme Court which would have
actually adversely affected the outcome of his conviction or sentence,
(2) there is evidence, not reasonably discoverable at time of trial, which, had it been introduced at
trial, would have caused a different result in his conviction or sentence, or
[(3) the prisoner claims that his sentence has expired or his probation, parole or conditional release
has been unlawfully revoked.]
The record does not reveal that Retherford asserted any of the aforementioned contentions to overcome the
time bar. Neither Retherford's first petition for post-conviction relief nor his subsequent petition would have
come within these exceptions and, since Retherford failed to proceed with appellate action after his first
petition was denied, his second petition is also time-barred by the three year statute of limitations. The
record reveals that the trial judge informed Retherford of his right to a jury; however, it does not reveal that
the trial judge notified him of his right to confront and cross-examine witnesses or his right against selfincrimination. Even so, Retherford failed to take timely action on these claims and is now procedurally
barred under the post-conviction collateral relief act. Therefore, issues one through three are without merit.
IV. WHETHER THE TRIAL COURT EXCEEDED ITS STATUTORY AUTHORITY IN
SENTENCING.
¶12. Retherford argues as a fourth assignment of error that the trial judge exceeded its statutory authority
under Mississippi Code Annotated Section 99-19-3 when he imposed a sentence, because there was no
legal conviction. As previously discussed by this Court in our opinion addressing issues one through three,
this argument is procedurally barred and without merit. However, the Mississippi Supreme Court has
acknowledged that under certain circumstances when a prisoner argues that a trial court has imposed a
sentence for life imprisonment and such sentence exceeds one's life it may be exempt from such procedural
bars where it is clear from the record that the circuit court has exceeded its statutory authority in sentencing
and fundamental constitutional rights may be involved. Kennedy v. State, 626 So. 2d 103, 105 (Miss.
1993). However, in the case at bar, Retherford's argument is without merit.
¶13. On July 19, 1994, prior to his appeal to this Court, the trial judge signed an order modifying the
sentence imposed on Retherford. The supreme court has stated that a sentence imposed should be "for a
definite term reasonably expected to be less than life." Stewart v. State, 372 So. 2d 257, 259 (Miss.
1979). The trial judge noted this law and modified Retherford's sentence from 80 years to 53.9 years. In
Lindsay v. State, 720 So. 2d 182, 185 (Miss. 1998), the Mississippi Supreme Court stated that
sentencing "is within the discretion of the trial court, and this Court will not review the sentence, if it is within
the limits prescribed by statute." Reynolds v. State, 585 So. 2d 753, 756 (Miss. 1991). See also Wallace
v. State, 607 So. 2d 1184, 1188 (Miss. 1992). The modification of Robertson's sentence is within the
statutory sentencing guidelines allowed when an individual is guilty of the crime of armed robbery. This
Court finds that the trial court did not err and this issue is without merit.
V. WHETHER THE TRIAL JUDGE ERRED IN ORDERING RETHERFORD TO PAY A
THREE HUNDRED DOLLAR FINE FOR FILING FRIVOLOUS MOTIONS.
¶14. Retherford argues as a fifth assignment of error that the trial court exceeded its statutory authority in
assessing a three hundred dollar fine for redundant and frivolous motions because it contravenes Mississippi
Code Annotated Section 47-5-138 (3)(a) and (b). The pertinent parts of Miss. Code Ann. Section 47-5138 (3)(a) and (b) (Supp. 1998) reads as follows:
(a) For the purpose of this subsection, "final order" means an order of a state or federal court that
dismisses a lawsuit brought by an inmate while the inmate was in the custody of the Department of
Corrections as frivolous, malicious or for failure to state a claim upon which relief could be granted.
(b) On receipt of a final order, the department shall forfeit:
(i) Sixty (60) days of an inmate's accrued earned time if the department has received one (1) final
order as defined herein;
(ii) One hundred twenty (120) days of an inmate's accrued earned time if the department has received
two (2) final orders as defined therein;
(iii) One hundred eighty (180) days of an inmate's accrued earned time if the department has received
three (3) or more final orders as defined herein.
The aforementioned subsection was added in 1996, and while forfeiture of time has become an additional
option which a trial judge may exercise in imposing sanctions for frivolous motions, the trial judge may also
impose monetary sanctions. In Kennedy v. State, 732 So. 2d 184, 187 (Miss. 1999), Kennedy had been
assessed a $250 fine by the trial court for the filing of a frivolous motion and the Mississippi Supreme Court
upheld the monetary sanctions imposed by the trial judge. In the case at bar, the trial court assessed
Retherford costs of $300 for filing the post conviction motion that is the subject of this appeal. The
Mississippi Supreme Court has held that appropriate sanctions may be imposed upon pro se litigants. Ivy
v. State, 688 So. 2d 223, 224 (Miss. 1997); Roland v. State, 666 So. 2d 747, 751-52 (Miss. 1995).
These sanctions may take the form of monetary sanctions, as well as appropriate restrictions on future
filings. Id. This Court likewise finds this argument to be without merit.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY DENYING
BOTH PETITIONS FOR POST-CONVICTION RELIEF ARE AFFIRMED. ALL COSTS OF
THESE APPEALS ARE TAXED TO PEARL RIVER COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, IRVING, MOORE,
PAYNE, AND THOMAS, JJ., CONCUR.
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.