Timothy I. Gilley v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CP-00431-COA
TIMOTHY I. GILLEY
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
01/04/2001
HON. FRANK A. RUSSELL
TISHOMINGO COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
JOHN R. YOUNG
CIVIL - POST CONVICTION RELIEF
PCR DENIED
AFFIRMED - 11/27/2001
12/18/2001
BEFORE SOUTHWICK, P.J., IRVING, AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1. Timothy Gilley pled guilty to a charge of sale of cocaine and was sentenced as a second-time offender
to a term of thirty years with fifteen years suspended and three years post-release supervision. He filed a
motion in the Circuit Court of Lauderdale County, with the Honorable Frank A. Russell presiding, for resentencing. The motion was denied as the successive second petition to the trial court for post-conviction
relief under Miss. Code Ann. § 99-39-23 (Rev. 2000). Gilley now appeals that decision.
FACTS
¶2. After his sentencing, Gilley filed a motion for re-sentencing which was denied. Gilley asserts that it was
wrongly denied as a petition for post-conviction relief. He then filed again for a motion for re-sentencing as
a first time offender pursuant to Miss. Code Ann. § 41-29-149 (Supp. 2000) which allows "the judge of
the court of jurisdiction . . . in his discretion, [to] suspend such penalty, . . . for any person charged with a
first offense." Gilley filed the motion again saying that it was never meant to be a petition for post-conviction
relief but the court again dismissed it.
DISCUSSION
¶3. We are able to review a petitioner's claim that his sentence is illegal even if the writ is successive. Lyle
v. State, 756 So. 2d 1, 2 (¶6) (Miss. Ct. App. 1999). This Court must take into account "that a prisoner's
meritorious complaint may not be lost because [it is] inartfully drafted." Id. at (¶4). Gilley's brief is nearly as
well written as the brief submitted by the State in this case. However, both leave much to be desired in that
neither of them clearly enumerate the issues at hand, nor do they explain their position in any well-defined
fashion.
¶4. Gilley claims that his sentence is illegal because he should not have been considered a second-time
offender. His reasoning is that, not only did the prosecutor present inadmissible evidence regarding a prior
conviction, but Gilley has a copy of a letter saying there is/was no "hold" on him in the State of Alabama. A
sentence is within the court's sound discretion and will not be disturbed if it is within the statutory guidelines.
Bell v. State, 759 So. 2d 1111, 1115(¶18) (Miss. 1999). The sentence of thirty years with fifteen years
suspended is within the specified limits of the statute and is not a problem. Miss. Code Ann. § 41-29-139
(Supp. 2000). However, the judge used the information provided by the prosecution at the sentencing
hearing. This information was that there was a prior conviction in Alabama and that it wanted Gilley to serve
his sentence with them first.
¶5. One exception to the procedural bar is if the petitioner can refer us to an intervening decision of the
Supreme Court of either Mississippi or the United States "which would have actually adversely affected the
outcome of his conviction or sentence." Miss. Code Ann. § 99-35-5(2)(Rev. 2000). This is Gilley's second
attempt to get this motion through and neither attempt was accompanied by supporting case law to indicate
any specific decision of either higher court that affects his conviction or sentence. Another exception is if the
appellant has "evidence, not reasonably discoverable at the time of trial, which is of such nature that it would
be practically conclusive that had such been introduced at trial it would have caused a different result in the
conviction or sentence." Id. In addition to the statutory exceptions, the supreme court recognizes that the
procedural bar will be removed if the petitioner demonstrates that he has been denied a fundamental
constitutional right. Sneed v. State, 722 So. 2d 1255, 1257(¶11) (Miss. 1998). However, Gilley has made
no such showing.
¶6. The letter included with his brief is interesting, but by no means a direct route to a reduced sentence. In
addition to which, Gilley was represented at trial and during sentencing by counsel. The information in this
letter could have and should have been investigated by counsel during the proper court proceeding. During
Gilley's sentencing the State offered the case number, county in Alabama and a description of the crime of
which he was convicted. The letter attached to his brief is nothing more than the county asserting that the
State of Alabama should have record of the "hold" on Gilley and State of Alabama asserting the opposite.
This letter is evidence that Gilley was convicted in Alabama. However, it also evidences that all logic and
responsibility in the record-keeping of the corrections department of the State of Alabama has been lost in
this era of bureaucracy.
¶7. Unfortunately for Gilley, his letter is of no help to him. The judge found that the inclusion of this letter in
Gilley's motion did not warrant an evidentiary hearing in order to revisit sentencing. As such his claims have
no merit. The court was correct in its reasoning and its judgment is affirmed.
¶8. THE JUDGMENT OF THE CIRCUIT COURT OF TISHOMINGO COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO TISHOMINGO COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, CHANDLER AND BRANTLEY, JJ., CONCUR.
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