Wendell Duncan v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-CP-01511-COA
WENDELL DUNCAN
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
6/7/2001
HON. GRAY EVANS
WASHINGTON COUNTY CIRCUIT COURT
WENDELL DUNCAN (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
FRANK CARLTON
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED.
AFFIRMED: 05/06/2003
BEFORE SOUTHWICK, P.J., BRIDGES AND CHANDLER, JJ.
BRIDGES, J., FOR THE COURT:
¶1.
This is a collateral appeal under the Post-Conviction Relief Act from the Washington County Circuit
Court where Wendell Duncan was indicted on two charges, shooting into an occupied dwelling (cause no.
18,245) and aggravated assault (cause no. 18,246). According to the partial transcript, at the plea hearing
Duncan pled as a habitual offender under Miss. Code Ann. § 99-19-83. The trial court held that the State
did not satisfy the provisions of the habitual statute and thus Duncan was sentenced to a thirty year term
on the conviction of armed robbery to run consecutively to a previously imposed sentence of twelve years
on a burglary conviction.
¶2.
Duncan's first motion for post-conviction relief was earlier addressed and his second motion,
termed a "Writ of Habeas Corpus", seeking relief from his sentence was denied by the circuit court as a
successive petition under the Post-Conviction Relief Act. Duncan now appeals to this Court.
¶3.
This motion is prohibited by Miss. Code Ann. § 99-39- 27(9) (Supp. 2002) which provides, "the
dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or
successive application under this chapter." The record reflects that Duncan brought his initial motion for
post-conviction relief about January 17, 1996, which was later denied by the circuit court. This constitutes
his second motion which is procedurally barred under Miss. Code Ann. § 99-39-27(9) (Supp 2002).
¶4.
Duncan's motion is also time barred as it does not fall within the allotted three year time limitation.
Miss. Code Ann. § 99-39-5(2) states in part: "a motion for relief under this chapter shall be made within
three years after the time in which the prisoner's direct appeal is ruled upon by the Supreme Court of
Mississippi or . . . in case of a guilty plea, within three (3) years after entry of the judgment of conviction."
Miss. Code Ann. § 99-39-5(2) (Supp. 2002). Thus, Duncan's motion is time barred as well.
¶5.
THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT DENYING
POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO WASHINGTON
COUNTY.
McMILLIN, C.J. AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS, CHANDLER
AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY. KING, P.J.,
NOT PARTICIPATING.
2
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