John David Millsap v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CP-00689-COA
JOHN DAVID MILLSAP
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
03/14/2001
HON. BILLY JOE LANDRUM
JONES COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
C. GRANT HEDGEPETH
CIVIL - POST-CONVICTION RELIEF
ORDER DISMISSING PETITION FOR POSTCONVICTION COLLATERAL RELIEF.
AFFIRMED - 04/09/2002
4/30/2002
BEFORE SOUTHWICK, P.J., LEE, AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1. On April 20, 1988, John Millsap pled guilty to two counts of armed robbery in the Circuit Court of
Jones County and was sentenced to two twenty-year terms to be served consecutively in the custody of the
Mississippi Department of Corrections. Twelve years later he filed a motion for post-conviction relief
pursuant to Miss. Code Ann. § 99-39-5(g) that his sentence has expired, his probation, parole, or
conditional release was unlawfully revoked or he is otherwise unlawfully held in custody. The trial court
found his arguments to be without merit and dismissed the petition. Feeling aggrieved, Millsap appealed to
this Court making the same argument as below.
FACTS
¶2. On April 20, 1988, Millsap appeared in the Circuit Court of Jones County, Mississippi to enter a plea
of guilty to two counts of robbery with a deadly weapon. Millsap, pursuant to a plea agreement with the
State, was sentenced to two twenty-year terms, to be served consecutively. Although he had been
previously incarcerated on charges of burglary, the State dropped the habitual offender enhancement on
both indictments. On January 18, 2001, Millsap filed an out of time motion for post-conviction relief. This
motion was dismissed by the circuit court and Millsap has perfected this appeal.
LAW AND ANALYSIS
¶3. On appeal, a reviewing court should not disturb a lower court's decision to deny a petition for postconviction relief unless the court's factual findings are clearly erroneous. However, where questions of law
are raised the applicable standard of review is de novo. Eldridge v. State, 764 So. 2d 515 (¶8) (Miss. Ct.
App. 2000) (citing Brown v. State, 731 So. 2d 595 (¶6) (Miss. 1999)).
¶4. Millsap argues on appeal that the trial court should have granted his petition for post-conviction relief
because his sentence has expired and/or he is being unlawfully held in custody. He bases these arguments
on his insistence that the application of Miss. Code Ann. § 47-7-3(1)(d)(i) (Rev. 2000) to his sentence is
an expost facto violation because he was not indicted under this statute. That statute reads in pertinent part,
"[n]o person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery . . .
through the display of a firearm until he shall have served ten years if sentenced to a term . . . of more than
ten years . . . ."
¶5. Millsap also asserts that he was not informed of the mandatory ten year term before he could be eligible
for parole. In fact, he insists that his plea was made with the condition that it was subject to good time and
parole. Millsap argues that the trial court deliberately left the provision concerning good time and parole out
of the hearing transcript.
¶6. In general, a petition for post-conviction relief based on a guilty plea must be brought within three years.
Miss. Code Ann. § 99-39-5(2) (Rev. 2000). In order to be excepted from this three year statute of
limitations, the petitioner must demonstrate:
[T]hat there has been an intervening decision of the Supreme Court of either the State of Mississippi
or the United States which would have actually adversely affected the outcome of his conviction or
sentence or that he 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. Likewise excepted are those cases in which the
prisoner claims that his sentence has expired or his probation, parole or conditional release has been
unlawfully revoked.
Miss. Code Ann. § 99-39-5(2) (Rev. 2000).
¶7. Millsap has failed to meet the requirements of the above-mentioned statute. He has cited no intervening
decisions of the United States Supreme Court or the Mississippi Supreme Court that have adversely
affected his conviction or sentence. He has also failed to demonstrate that his sentence has expired or his
probation, parole or conditional release has been unlawfully revoked. Millsap was sentenced to a total of
forty years in prison. At the time of filing this appeal, he had served twelve years and nine months of that
sentence. He has not been released on probation, parole or conditional release; therefore, such grants could
not have been revoked.
¶8. Millsap's ex post facto argument is without merit. Millsap was sentenced on April 20, 1988. The statute
explicitly governs convictions of robbery or attempted robbery occurring after January 1, 1977. Miss.
Code Ann. § 47-7-3(1)(d)(i) (Rev. 2000). Also, his argument that the trial court deliberately deleted from
the record provisions of his plea agreement concerning good time and parole is completely unsupported by
any facts in the record. Only Millsap's self-serving statements exist to bolster such an assertion.
¶9. This petition for post-conviction relief was brought twelve years after Millsap was sentenced by the trial
court. He has presented this Court with no evidence to verify his claims and does not meet the statutory
requirements for obtaining an out of time petition for post-conviction relief.
¶10. Millsap attempts to raise on appeal several issues he did not raise in his original petition for postconviction relief, including ineffective assistance of counsel and violation of his Fourteenth Amendment due
process rights. He also attempts to argue that because the transcript of his April 20, 1988 hearing was not
transcribed until May 13, 1988, his sentence and plea were violated. Because these issues were not raised
in his original petition, he is barred from bringing them here. Pace v State, 770 So. 2d 1052 (¶5) (Miss.
Ct. App. 2000).
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY DISMISSING THE
PETITION FOR POST-CONVICTION RELIEF WITH PREJUDICE IS AFFIRMED. COSTS
ARE ASSESSED TO JONES COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND BRANTLEY, JJ., CONCUR.
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