Johnny Earl Lacy v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-01032-COA
JOHNNY EARL LACY
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
05/30/2000
HON. V. R. COTTEN
SCOTT COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
KEN TURNER
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED
AFFIRMED-12/11/2001
1/11/2002; denied 3/5/2002
5/2/2002; denied 7/18/2002
8/8/2002
BEFORE KING, P.J., BRIDGES, AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1. This appeal originates from an order of the Circuit Court of Scott County summarily overruling and
dismissing Johnny Earl Lacy's post-conviction motion to vacate the habitual offender portion of his
sentence. Lacy appears pro se before the Court and asserts (1) that the circuit court's summary denial and
dismissal of his motion for post-conviction relief was error constituting a deprivation of due process and
equal protection of the law, and (2) that he made a prima facie showing of the denial of a state and federal
right. We find no reversible error; therefore, we affirm the judgment of the circuit court.
FACTS
¶2. On February 6, 1991, Lacy was indicted in the Circuit Court of Scott County as a habitual offender for
aggravated assault. The predicate felony convictions providing the basis for habitual offender status
occurred in the State of Nevada. On February 19, 1991, a jury found Lacy guilty as charged. On February
21, 1991, the trial court sentenced him to serve twenty years in the custody of the Mississippi Department
of Corrections, without parole, suspension or reduction of sentence pursuant to the habitual offender
sentencing provisions of section 99-19-81 of the Mississippi Code of 1972 as annotated and amended.
¶3. Lacy appealed his conviction and sentence to the Mississippi Supreme Court. In that appeal, Lacy
raised, inter alia, the validity of the habitual portion of his sentence. The issue was raised indirectly by
challenging the propriety of the trial court's permitting the State to amend the indictment. The precise issue
was: "the lower court erred in allowing the State to amend the habitual offender portion of the indictment so
as to change the identity of two of the three underlying convictions relied upon for enhanced punishment."
See Lacy v. State, 629 So. 2d 591, 593 (Miss. 1993). On December 16, 1993, the Mississippi Supreme
Court affirmed the conviction and sentence. Id. at 595.
¶4. On April 11, 2000, Lacy filed, in the Circuit Court of Scott County, a motion to vacate and set aside
the habitual provision of the sentence given him by that court on February 21, 1991, and affirmed by the
Mississippi Supreme Court on December 16, 1993. As stated, the trial court summarily overruled and
dismissed the motion. In so doing, the trial court held (1) that the motion was time barred pursuant to
Mississippi Code Annotated section 99-39-5(2) (Rev. 2000), (2) that the motion was procedurally barred
because the Mississippi Supreme Court had not granted Lacy permission to file a post-conviction relief
motion following its affirmance of Lacy's conviction and sentence on direct appeal, and (3) the issues raised
by Lacy in the motion were considered and rejected on direct appeal; therefore, consideration of them was
barred by the doctrine of res judicata.
ANALYSIS AND DISCUSSION OF THE ISSUES PRESENTED
¶5. Mississippi Code Annotated section 99-39-7 (Rev. 2000) speaks to the prerequisite for filing a postconviction relief motion following the affirmance of a prisoner's conviction and sentence on direct appeal.
This code section states that:
The motion under this chapter shall be filed as an original civil action in the trial court, except in cases
in which the prisoner's conviction and sentence have been appealed to the supreme court of
Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been
affirmed on appeal or the appeal has been dismissed, the motion under this chapter 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 of Mississippi, convened for said purpose either in term-time or in vacation, and an
order granted allowing the filing of such motion in the trial court. The procedure governing applications
to the supreme court for leave to file a motion under this chapter shall be as provided in section 9939-27.
Miss. Code Ann. §99-39-7 (Rev. 2000).
¶6. In Watts v. State, 746 So. 2d 310 (¶2) (Miss. 1999), the Mississippi Supreme Court held, in
accordance with the dictates of the statute, that when a defendant has raised issues that are considered and
rejected on direct appeal, the defendant must obtain the permission of the supreme court in order to file a
post-conviction relief motion in the circuit court.
¶7. As stated, Lacy prosecuted a direct appeal to the Mississippi Supreme Court where his conviction and
sentence were affirmed in toto. We could find neither an application to the Mississippi Supreme Court for
leave of court to file the instant motion nor an order of the Mississippi Supreme Court granting leave to file
same. Lacy admits in his brief that no permission was granted although he contends an application for leave
was filed and denied. In the absence of such permission, we conclude that Lacy was procedurally barred
from filing the motion in the circuit court. In an effort to extricate himself from the procedural bar, Lacy cites
the case of Kennedy v. State, 732 So. 2d 184 (Miss. 1999). In Kennedy, the Mississippi Supreme Court
considered Victor Kennedy's claim, made in a successive post-conviction relief motion, that the trial court
was without authority to sentence him to life for murder. Id. at 187. The court held that Kennedy was
entitled to have his claim considered on the merits because it was essentially a claim that his life sentence for
murder was illegal. In so ruling, the Kennedy court said that "[t]his Court has held that errors affecting
fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit
their consideration." Id. at (¶8). In a previous post-conviction relief motion, the supreme court had "affirmed
the trial court's denial of relief on the life sentence for the murder charge." Id. at (¶2).
¶8. Kennedy is different from our case in that in Kennedy, there had been no direct appeal of Kennedy's
conviction and sentence. Id. Therefore, Kennedy was not required to obtain leave of the Mississippi
Supreme Court prior to initiating his first PCR motion. The only procedural bar Kennedy faced was the
three-year limitation provision contained in section 99-39-5(2) of the Mississippi Code of 1972 as
annotated and amended. Here, Lacy faces both the three-year bar contained in section 99-39-5(2) as well
as the no-filing-without-permission bar contained in section 99-39-7. Lacy has cited no authority for the
proposition that a prisoner, who has had his conviction and sentence affirmed on direct appeal, may institute
a post-conviction relief motion in the trial court without first obtaining leave of the Mississippi Supreme
Court to do so. We know of no such authority. Accordingly, we affirm the decision of the trial court
dismissing Lacy's post-conviction relief motion.
¶9. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY DENYING POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS ARE ASSESSED TO SCOTT COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, 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.
