James Franklin Putnam v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CP-01538-COA
JAMES FRANKLIN PUTNAM
APPELLANT
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:
APPELLEE
8/29/2002
HON. JERRY O. TERRY, SR.
HARRISON COUNTY CIRCUIT COURT
JAMES FRANKLIN PUTNAM (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CONO A. CARANNA, II
CIVIL - POST - CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
BASED ON INVOLUNTARY GUILTY PLEA IS
DENIED.
AFFIRMED - 12/16/2003
BEFORE MCMILLIN, C.J., IRVING AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1.
James Putnam, pro se, appeals an order of the Circuit Court of Harrison County, Mississippi
denying his motion for post-conviction relief. Aggrieved, Putnam perfected this appeal raising the following
issues:
I. WHETHER THE APPELLANT’S INDICTMENT WAS VALID
II. WHETHER THE APPELLANT’S GUILTY
INTELLIGENTLY AND VOLUNTARILY ENTERED
PLEA
WAS
KNOWINGLY,
III. WHETHER THE APPELLANT IS ENTITLED TO A NEW EVIDENTIARY HEARING
IV. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL
V. WHETHER THE MISSISSIPPI POST-CONVICTION COLLATERAL RELIEF ACT IS
CONSTITUTIONAL
STATEMENT OF FACTS
¶2.
James Putnam was indicted on one count of embezzlement. A year later Putnam was indicted on
two counts of armed robbery and one count of a felon in possession of a firearm. One count of armed
robbery was dropped and Putnam pled guilty to the remainder of the charges. Putnam received a twenty
year sentence for the armed robbery, a five year sentence for the embezzlement and one year for the
firearm charge. The sentences were to run concurrently with each other as well as with a previous federal
sentence. However, the sentences were mandatory due to the fact that Putnam was designated as a
habitual offender pursuant to Mississippi Code Annotated Section 99-19-81.
¶3.
Putnam filed a timely motion for post-conviction relief claiming his convictions and sentences were
unconstitutional. Putnam also claimed that he received ineffective assistance of counsel. The trial court
ordered the State to respond. Upon receiving the State’s answer and defenses, the trial court issued an
order vacating the habitual offender enhancement with regards to the embezzlement and armed robbery
charges. In addition, the trial court vacated the firearm charge altogether. The trial court granted a
telephonic evidentiary hearing on the sole issue of whether Putnam’s guilty plea to the armed robbery
charge was involuntary.
¶4.
After the hearing, the trial court denied Putnam’s motion for relief ruling that the guilty plea was
knowingly, intelligently and voluntarily entered. As a result, Putnam filed this timely appeal.
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STANDARD OF REVIEW
¶5.
In reviewing a lower court's decision to deny a petition for post-conviction relief, this Court will not
disturb the trial court's factual findings unless they are found to be clearly erroneous. Graves v. State, 822
So. 2d 1089, 1090 (¶ 4) (Miss. Ct. App. 2002) (citing Pickett v. State, 751 So. 2d 1031, 1032 (¶ 8)
(Miss. 1999); Brown v. State, 731 So. 2d 595, 598 (¶ 6) (Miss. 1999)). However, where questions of
law are raised, the applicable standard of review is de novo. Id.
LEGAL ANALYSIS
I. WHETHER THE APPELLANT’S INDICTMENT WAS VALID
¶6.
Putnam argues the indictment to the charge of armed robbery was invalid for two reasons. First,
because he was initially charged with a lesser crime. Second, because he never actually took and carried
away the property of another. As a result, Putnam argues, the trial court lacked subject matter jurisdiction
in convicting him.
¶7.
As to Putnam’s first alleged error, we find it to be without merit. Although a police report indicates
that an officer initially labeled one of the armed robberies as a trespass and simple assault, that is not the
armed robbery at issue. As noted above, Putnam was indicted on two counts of armed robbery but only
pled guilty to one. The police report that is labeled trespass and simple assault deals with the dropped
armed robbery charge. The plea hearing transcript reflects this fact.
¶8.
As to Putnam’s second alleged error, we also find it to be without merit. Uniform Circuit and
County Court Rule 7.06 requires that “[t]he indictment upon which the defendant is to be tried shall be a
plain, concise and definite written statement of the essential facts constituting the offense charged and shall
fully notify the defendant of the nature and cause of the accusation.” Likewise, it is well settled that “every
fact which is an element in a prima facie case of guilty must be stated in the indictment." Hawthorne v.
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State, 751 So. 2d 1090, 1095 (¶ 23) (Miss. Ct. App. 1999) (citing Hennington v. State, 702 So. 2d
403, 408 (¶ 15) (Miss. 1997)).
¶9.
The indictment states that Putnam “did willfully, unlawfully and feloniously attempt to take and
carry away from the presence and against the will of Robert Earl Williamson, personal property . . . by
putting the said Robert Earl Williamson in fear of immediate injury to his person, by the exhibition of a
deadly weapon, to wit a handgun, contrary to the form of the statute in such cases made and provided, and
against the peace and dignity of the State of Mississippi.” (emphasis added). Moreover, the language of
the indictment tracks the statute. Under Mississippi Code Annotated Section 97-3-79 (Rev. 2000),
“[e]very person who shall feloniously take or attempt to take from the person or from the presence the
personal property of another and against his will by violence to his person or by putting such person in fear
of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery . . . .”
(emphasis added).
¶10.
According to statute, a person can be convicted of armed robbery while attempting to complete
the crime. The language in the indictment mirrors this notion. The indictment against Putnam for the crime
of armed robbery is valid. The trial court had the appropriate subject matter jurisdiction.
II. WHETHER THE APPELLANT’S GUILTY
INTELLIGENTLY AND VOLUNTARILY ENTERED
¶11.
PLEA
WAS
KNOWINGLY,
Putnam argues that his guilty plea was involuntary for the following reasons. First, Putnam argues
that he had no real understanding of the law in relation to the facts, and therefore, had no actual notice of
the charge. Second, Putnam argues that he would not have pled guilty but for counsel’s erroneous
recommendations. Finally, Putnam argues the trial court violated his due process rights by accepting his
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guilty plea and convicting him while reasonable doubt existed that all of the elements of the crime had been
met.
¶12.
This Court has previously held that “if the defendant is advised regarding the nature of the charge
and the consequences of the plea, then the plea is considered voluntary and intelligent.” Eacholes v. State,
847 So. 2d 280, 281 (¶ 3) (Miss. Ct. App. 2003) (citing Alexander v. State, 605 So. 2d 1170, 1172
(Miss. 1992)). In addition, declarations made under oath and in open court carry a “strong presumption
of verity.” Eacholes, 847 So. 2d at 281 (¶ 3) (citing Baker v. State, 358 So. 2d 401, 403 (Miss. 1978)).
¶13.
The heart of this issue revolves around Putnam’s allegation that it is impossible for him to be
convicted of armed robbery because he did not complete one of the essential elements. Namely, that he
did not take and carry away the personal property of another. He claims that he did not understand this
aspect of the law as it relates to the facts of his case. He also claims that his counsel should have related
this aspect of the law to him before recommending a guilty plea.
¶14.
As noted above, a person in Mississippi can be charged and convicted of armed robbery without
actually taking and carrying away the personal property of another. Miss. Code Ann. § 97-3-79 (Rev.
2000); Cooper v. State, 386 So. 2d 1115, 1116 (Miss. 1980). No actual taking or asportation of the
owner’s property is necessary. Cooper, 386 So. 2d at 1116.
¶15.
In the present case, the record reflects that Putnam was informed of the charges against him, the
consequences of pleading guilty and the possible sentence to be imposed. At the plea hearing, Putnam
stated that his intent was to rob the store. Putnam stated that he was, in fact, actually guilty of committing
an armed robbery. In addition, Putnam stated that he had no complaints regarding his legal representation.
We find Putnam’s argument that his plea was involuntary to be without merit. As a consequence, we find
no violation of Putnam’s due process rights on the part of the trial court.
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III. WHETHER THE APPELLANT IS ENTITLED TO A NEW EVIDENTIARY HEARING
¶16.
Putnam denies the accuracy of the transcript from his evidentiary hearing and argues that he is
entitled to another one. Putnam claims the record indicates that there were some connection problems with
the telephone and, as a result, the transcript reduces his arguments to nonsense.
¶17.
The trial judge’s initial ruling on Putnam’s motion for post-conviction relief granted an evidentiary
hearing on the sole issue of whether Putnam’s guilty plea was voluntary. The hearing was conducted
telephonically due to the fact that Putnam was incarcerated in a Pennsylvania federal prison.
¶18.
After the hearing, a court reporter sent Putnam a letter requesting a copy of the document he read
from for her records. Putnam told the court reporter that had not read from anything. Thereafter, Putnam
filed a motion for a new hearing but it was denied. Putnam filed a motion for reconsideration which was
also denied. Putnam then filed a motion requesting leave to submit a brief as a result of the court reporter’s
inquiry which was also denied.
¶19.
A motion for post-conviction relief which meets basic pleading requirements is sufficient to mandate
an evidentiary hearing unless it appears beyond doubt that the petitioner can prove no set of facts in support
of a claim which would entitled him to relief. Taylor v. State, 782 So. 2d 166, 168 (¶ 4) (Miss. Ct. App.
2000) (citing Robertson v. State, 669 So. 2d 11, 13 (Miss. 1996)). In addition, the trial judge has
discretion in allowing an evidentiary hearing. Miss. Code Ann. § 99-39-11(2) (Rev. 2000).
¶20.
In the present case, Putnam has provided nothing in the record to support his claim that the
transcript is inaccurate. The fact that the court reporter requested a copy of Putnam’s statements for her
records does not prove that the evidentiary hearing transcript was inaccurate. The evidentiary hearing
transcript included in the record indicates that there was an initial problem with the telephone connection.
This took place at the very beginning of the conversation before the merits of Putnam’s motion had been
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raised. The transcript also indicates that this problem was corrected by substituting a phone that the trial
judge was using. The trial court found that nothing from Putnam’s plea hearing indicated that the plea was
entered against his will and refused to permit a second evidentiary hearing on the same issue.
¶21.
Considering these facts, we cannot say that the trial judge was clearly erroneous in denying
Putnam’s request for a second evidentiary hearing. We hold that Putnam is not entitled to a new
evidentiary hearing.
IV. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL
¶22.
Putnam asserts several errors against his counsel. First, Putnam argues his counsel failed to inform
him that he was the only red-haired person in the photographic lineup. Second, Putnam argues his attorney
failed to suppress his confession. Third, Putnam argues his attorney failed to investigate and inform him as
to the elements of armed robbery. In other words, Putnam argues that had his counsel advised him that
the taking and carrying away of the personal property of another was a required element of armed robbery,
he would have not pled guilty. Finally, Putnam argues he was denied assistance of counsel at his evidentiary
hearing.
¶23.
Our function on appeal is to determine whether counsel's performance was deficient and whether
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
This Court has discussed these requirements in the following way:
A fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time. Because of
the difficulties inherent in making the evaluation, a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance: that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action "might be considered sound trial strategy."
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Bradford v. State, 759 So. 2d 434, 439 (¶ 18) (Miss. Ct. App. 2000) (quoting Stringer v. State, 454
So. 2d 468, 477 (Miss. 1984)).
¶24.
In analyzing this issue, we hold that Putnam has failed to meet the requirements under Strickland.
Of all of the alleged errors of counsel, Putnam only applies the Strickland test to his counsel’s failure to
inform him as to the requirement that a person must take and carry away the property of another in order
to be convicted of armed robbery. As noted above, this requirement is unnecessary. The law in this state
allows for a conviction of armed robbery in circumstances where the defendant has attempted the crime.
Such was the situation in the present case. It is impossible for Putnam to prove that the absence of this
advice from his attorney would have affected the outcome at trial.
¶25.
Moreover, we find Putnam’s claim that he received no assistance of counsel at the evidentiary
hearing to be without merit. First, “[a] criminal defendant has neither a state nor a federal constitutional
right to appointed counsel in post-conviction proceedings.” Moore v. State, 587 So. 2d 1193, 1195
(Miss. 1991) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987)). The Mississippi Post-Conviction
Collateral Relief Act states that a judge may appoint counsel for a qualified petitioner. Miss. Code Ann.
§ 99-39-23 (1) (Rev. 2000) (emphasis added). In other words, it is within the judge’s discretion.
¶26.
Second, the record indicates that the trial judge notified Putnam’s attorney at the time regarding
the hearing. As noted above, this hearing took place telephonically due to the fact that Putnam was
detained in a federal prison in Pennsylvania. Putnam was accompanied by a Federal Bureau of Prisons
counselor.
¶27.
The transcript from the hearing states that Putnam initiated the hearing two hours early because of
time constraints at the federal prison along with a mistaken belief about the time zone differential between
the two states. The trial judge notified Putnam of this mistake. The trial judge then specifically asked
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Putnam if he still wished to proceed despite the fact that he was two hours ahead of schedule. Putnam then
proceeded to present his claims over the telephone. We find this issue to be without merit.
V. WHETHER THE MISSISSIPPI POST-CONVICTION COLLATERAL RELIEF ACT IS
CONSTITUTIONAL
¶28.
Putnam argues the Mississippi Post-Conviction Collateral Relief Act is unconstitutional because
it constitutes a suspension of the writ of habeas corpus. We disagree. The Post-Conviction Relief Act is
not a new concept in Mississippi law. Irving v. State, 498 So. 2d 305, 308 (Miss. 1986). It is merely
a codification of existing constraints on review traditionally practiced by the Supreme Court. Id. As a
result, we find Putnam’s last issue on appeal to be without merit.
¶29. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED
TO HARRISON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.
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