Desmond Earl Phillips v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2002-CP-00195-COA
DESMOND EARL PHILLIPS
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
07/17/2001
HON. HENRY L. LACKEY
LAFAYETTE COUNTY CIRCUIT COURT
DESMOND EARL PHILLIPS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
JAMES M. HOOD III
CIVIL - POST-CONVICTION RELIEF
07/17/2001: POST-CONVICTION
COLLATERAL RELIEF - DENIED
AFFIRMED - 05/20/2003
BEFORE KING, P.J., THOMAS, AND CHANDLER, JJ.
THOMAS, J., FOR THE COURT:
¶1.
Desmond Earl Phillips, pro se, appeals an order of the Circuit Court of Lafayette County,
Mississippi, denying his petition for post-conviction relief. Aggrieved, he asserts the following issues:
I.
APPELLANT IS NOT BARRED FROM PROSECUTING THIS CIVIL CAUSE,
ESPECIALLY WHERE APPELLEE WILL NOT BE PREJUDICED THEREBY.
II.
THE CIRCUIT COURT JUDGE WAS ASSIGNED TO THIS CASE
ERRONEOUSLY, THUS, SHOULD HAVE RECUSED HIMSELF.
III.
THE CIRCUIT COURT JUDGE ERRONEOUSLY DENIED APPELLANT AN
EVIDENTIARY HEARING BY VIOLATING THE "LAW OF THE CASE"
DOCTRINE.
Finding no error, we affirm.
PROCEDURAL HISTORY AND FACTS
¶2.
Desmond Earl Phillips pled guilty to a reduced charge of conspiracy to commit forgery on April
12, 1983. On July 11, 1983, Phillips was sentenced to five years, which was suspended, and he was
placed on probation for a period of five years. On April 9, 1999, Phillips filed a "Petition for PostConviction Relief from Prior Judgment of Conviction Used to Enhance Current Sentence," claiming he was
never informed that by pleading guilty he was waiving his right against self-incrimination. On August 18,
2000, Phillips filed a supplemental brief alleging that his suspended sentence was not authorized by statute
and was illegal because when he pled guilty he already had a prior conviction. Circuit Judge Kenneth
Coleman dismissed the motions without an evidentiary hearing, ruling that the claims were time barred.
Phillips then filed a motion to amend, alter, and vacate order, and also requested that Judge Coleman
recuse himself. Judge Coleman granted this motion. Circuit Judge Henry Lackey was assigned the case
and denied Phillips' motions as being time barred. Phillips again filed motions to amend, alter, and vacate
order, and for Judge Lackey to recuse himself. These motions were denied and Phillips perfected his
appeal to this Court.
ANALYSIS
I.
IS APPELLANT BARRED FROM PROSECUTING THIS CIVIL CAUSE, WHERE
APPELLEE WILL NOT BE PREJUDICED THEREBY?
¶3.
Phillips asserts that he is not barred from bringing his motion for post-conviction relief because it
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is in regard to an illegal sentence and is therefore exempt from the time bar as a fundamental right. United
States v. Sine, 461 F. Supp. 565, 568 (D.C. S.C. 1978). According to Phillips, he had prior felony
convictions on his record and therefore his being given a suspended sentence and probation was illegal
under Miss. Code Ann. § 47-7-33 (Rev. 2000).
¶4.
This Court reviews the denial of post-conviction relief under an abuse of discretion standard.
Mitchell v. State, 754 So. 2d 519, 521 (¶7) (Miss. Ct. App. 1999). As in the case of Shaw v. State,
803 So. 2d 1282 (Miss. Ct. App. 2002), there is a problem in that Phillips has already served the sentence
for which he now complains. Phillips was sentenced to five years, which was suspended, and was placed
on probation for five years in 1983. Therefore, his sentence expired in 1988. Mississippi Code Annotated
Section 99-39-5(1), which deals with the grounds for relief afforded by our post-conviction statutes, clearly
states "[a]ny prisoner in custody under sentence of a court of record of the State of Mississippi who claims
that the conviction or the sentence . . ." Miss. Code Ann. § 99-39-5(1) (Rev. 2000). This language
indicates that for someone to be able to take advantage of our post-conviction laws they must be currently
incarcerated for a crime for which they were convicted by a Mississippi court. Shaw, 803 So. 2d at 1284
(¶7). Because it appears Phillips was never incarcerated for the crimes he was convicted for in 1983 and
is no longer on probation for them, then he is unable to challenge the sentence through the use of a motion
for post-conviction relief. Id.
¶5.
The statute of limitations for filing a petition for post-conviction relief is three years after a guilty plea
is entered. Miss. Code Ann. § 99-39-5(2) (Rev. 2000). Phillips pled guilty in 1983, but § 99-39-5(2)
was not passed until April 17, 1984. When a conviction predates the adoption of the post-conviction relief
statutes in 1984, the inmate has three years in which to file a petition for relief. Odom v. State, 483 So.
2d 343, 344 (Miss. 1986). Therefore, Phillips' last opportunity to seek post3
conviction remedies ended in 1987. Phillips argues that his case falls into the exception to the statute, which
states as follows:
Excepted from the three-year statute of limitations are those cases in which the prisoner
can demonstrate either that 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.
Miss. Code Ann. § 99-39-5(2) (Rev. 2000). Phillips argues his fundamental right to enter a knowing and
intelligent guilty plea is involved because the trial court never explained to him the rights he was giving up
by pleading guilty. If Phillips had filed this motion for post-conviction relief within the three-year statutory
period, and while he was still serving his sentence, then perhaps his claim would have more merit.
However, our post-conviction statutes are available only to those serving a sentence for the crime for which
they were convicted by a Mississippi court of record. Since Phillips is not currently incarcerated for his
conspiracy to commit forgery conviction for which he now complains, then the issue of whether the statute
of limitations has run is moot. Shaw, 803 So. 2d at 1284 (¶8).
II.
WAS THE CIRCUIT COURT JUDGE ASSIGNED TO THIS CASE
ERRONEOUSLY, THUS, SHOULD HE HAVE RECUSED HIMSELF?
¶6.
Phillips contends that Judge Lackey should have recused himself because he was assigned Phillips'
case by Judge Coleman, who recused himself because he was the district attorney at the time Phillips was
indicted. Lacking any showing of impropriety or the appearance of partiality, Phillips fails to demonstrate
any reason to this Court why he should be allowed to overcome the time bar which took effect over sixteen
years ago. This issue is without merit.
III.
DID THE CIRCUIT COURT JUDGE ERRONEOUSLY DENY APPELLANT AN
EVIDENTIARY HEARING BY VIOLATING THE "LAW OF THE CASE"
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DOCTRINE?
¶7.
Phillips asserts that an order was issued on October 18, 1999, which authorized an evidentiary
hearing. This evidentiary hearing never occurred, because the trial court dismissed Phillips' motion for postconviction relief due to the time bar. The trial court did not err in dismissing Phillips' motion under Miss.
Code Ann. § 99-39-5(2) (Supp. 2002) as being time barred. The statute waives the time bar when the
supreme court of this State or of the United States has handed down a decision that would have changed
the outcome of the case, when new and nearly conclusive exculpatory evidence is presented that had not
been reasonably discoverable at the time of trial, or when the argument is that the sentence has expired or
that probation or parole has been improperly revoked. Id. Scott v. State 791 So. 2d 313, 314 (¶3)
(Miss. Ct. App. 2001). Phillips fails to meet any of these requirements. This issue is without merit.
¶8.
THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO LAFAYETTE COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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