Charles Torns, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CP-00431-COA
CHARLES TORNS, JR.
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
2/20/2002
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
CHARLES TORNS, JR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
ELEANOR JOHNSON PETERSON
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED WITH PREJUDICE
DISMISSED - 11/25/2003
BEFORE KING, P.J., BRIDGES AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1.
Charles Torns filed a pro se motion for post-conviction collateral relief alleging that his convictions
and sentences were unconstitutional and that he was entitled to relief on the basis of due process and equal
protection. The trial court denied Torns’s motion as having no merit. Feeling aggrieved, Torns appeals
and argues that the trial court erred in denying his motion.
¶2.
We determine that the trial court did not have jurisdiction in this case. Consequently, Torns's
appeal conferred no jurisdiction upon this court. Therefore, we dismiss this appeal.
FACTS
¶3.
On September 30, 1993, Torns was convicted by a Hinds County jury of one count of mail fraud
and one count of uttering a forgery. In sentencing Torns as a habitual offender, the circuit court used, as
a predicate for sentence enhancement, a September 1986 conviction that Torns had acquired through his
plea of guilty to uttering a forgery. Consequently, the circuit court sentenced Torns to terms of fifteen and
five years, both to be served concurrently. Upon Torns’s appeal of this decision, this Court affirmed his
convictions. Torns v. State, 687 So. 2d 770 (Miss. Ct. App. 1996).
¶4.
On March 29, 2001, Torns filed a motion for post-conviction relief in the Circuit Court of Hinds
County. The motion’s heading only listed his 1986 conviction. In his motion, Torns challenged his 1986
conviction but also attacked the enhanced sentences he received for his 1993 convictions. The trial court
reviewed Torns’s motion on April 3, 2001, and considered it to be a challenge to both his 1986 and 1993
convictions. It held that Torns was statutorily estopped from challenging two judgments in the same motion
for post-conviction relief. The trial court declined to consider Torns’s motion as it related to his 1993
convictions and dismissed that portion of the motion without prejudice. The trial court also found that, since
Torns's 1993 convictions had been appealed and affirmed by this Court, he could not file a petition for
post-conviction collateral relief without first getting permission from the Mississippi Supreme Court. See
Miss. Code Ann. § 99-39-7 (Supp. 2003). As to the 1986 conviction, the trial court determined that
consideration of it was barred by the three-year statute of limitations. Consequently, it dismissed with
prejudice Torns’s motion for relief regarding his 1986 conviction. Torns subsequently filed a motion to alter
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or amend the circuit court’s April 3, 2001 judgment; however, the circuit court denied the motion as being
untimely filed.
¶5.
On May 15, 2001, Torns filed in the Mississippi Supreme Court a motion for leave to proceed in
post-conviction relief. While this motion contained the same verbatim challenges as did Torns’s postconviction relief motion before the trial court, this motion listed both his 1986 and 1993 convictions in its
heading. By an order of August 9, 2001, our supreme court determined that Torns’s motion was a
challenge to the validity of his 1986 guilty plea. It consequently denied Torns’s motion after holding that
Torns was required to first present his challenge to the trial court where the conviction occurred. The
supreme court did not address Torns’s 1993 convictions or the timeliness of his motion regarding the 1986
conviction.
¶6.
On August 30, 2001, Torns filed a second motion for post-conviction relief in the Circuit Court of
Hinds County. Unlike his first motion for post-conviction relief, his second motion’s heading contained
both his 1986 and 1993 convictions. While incorporating the same challenges listed in his initial motion,
the second motion differed only as to the inclusion of an argument that Apprendi v. New Jersey, 530
U.S. 466 (2000), constituted an “intervening decision” for purposes of post-conviction relief as relating to
his 1986 conviction and sentence.
¶7.
On February 20, 2002, the circuit court issued an order denying Torns’s second motion for post-
conviction relief and dismissing the motion with prejudice. The order stated that "it plainly appears from
the face of the motion in the present case that the Petitioner, after careful deliberation, is not entitled to the
relief requested and the motion should be denied."
DISCUSSION AND ANALYSIS OF THE ISSUES
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¶8.
As he has consistently done with his previous two motions before the circuit court and the single
motion before the Mississippi Supreme Court, Torns challenges both his 1986 and 1993 convictions. Since
Torns never obtained permission from our supreme court to file a post-conviction relief motion with respect
to his 1993 convictions, we have no jurisdiction to address his allegations regarding those convictions.
See Miss. Code Ann. § 99-39-7 (Supp. 2003). Therefore, we will not discuss them in this opinion.
¶9.
In regards to Torns’s 1986 conviction, the record clearly indicates that the Circuit Court of Hind
County issued its judgment of conviction on September 25, 1986, upon Torns’s submission of a plea of
guilty. Therefore, it was incumbent upon Torns to file his motion for post-conviction relief in that court
within three years after entry of the judgment of conviction. However, Torns did not file his motion with
the trial court until March 29, 2001, approximately fourteen and a half years after his 1986 conviction. On
April 3, 2001, the circuit court found that Torns’s motion was not filed within the statute of limitations and
dismissed the motion with prejudice. Torns then had thirty days to file an appeal of the judgment; however,
he did not file an appeal until March 18, 2002, over eleven months after the circuit court had denied his
motion for post-conviction relief. See M.R.A.P. 4(a). Therefore, Torns’s pursuit of this appeal in regard
to his 1986 conviction is untimely, and this Court has no jurisdiction to address the appeal. See Mosby
v. State, 830 So. 2d 661 (¶6) (Miss. Ct. App. 2002).
¶10.
We are aware that Torns filed a second post-conviction relief motion, making essentially the same
allegations as he had made in the first motion and that the trial court dismissed this second motion on
February 20, 2002, without making any reference to it being a second or successive post-conviction relief
motion. Even treating this appeal as an appeal from that order, we must still find that the trial court was
correct in dismissing Torns's motion because the filing of such motion was a second post-conviction relief
motion which is barred by Mississippi Code Annotated section 99-39-23 (6) (Supp. 2003).
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¶11.
We further note that Torns has not been in custody on account of his 1986 conviction since
December 21, 1987.1 He is presently in the custody of the Mississippi Department of Corrections as a
result of his 1993 convictions. Because he is not serving any sentence under the 1986 conviction, he is also
barred from bringing a post-conviction relief motion regarding that conviction. See Miss. Code Ann. § 9939-5 (Rev. 2000). Therefore, the trial court was without jurisdiction to consider Torns’s post-conviction
relief motion challenging his 1986 conviction, and since the trial court was without jurisdiction, we are
likewise lacking in jurisdiction. See Graves v. State, 822 So. 2d 1089, 1091 (¶6) (Miss. Ct. App.
2002) (“no jurisdiction is conferred upon this Court if none was in the court below”).
¶12. THIS APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS
ARE TAXED TO HINDS COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
1
According to the trial judge’s September 26, 1986 order, Torns was initially sentenced to a
suspended term of five years in the custody of the Mississippi Department of Corrections, with three years'
supervised probation for his conviction of uttering a forgery. However, on December 21, 1987, the trial
judge amended Torns’s sentence to fourteen months in the custody of the Mississippi Department of
Corrections with credit for time served from October 22, 1986, to the date of entry of the amended order,
December 12, 1987. Therefore, Torns's sentence expired on December 12, 1987, upon the issuance of
the amended order.
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