Omar Moody v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-01940-COA
OMAR MOODY
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF 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:
MANDATE ISSUED:
8/25/2004
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
OMAR MOODY (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
FORREST ALLGOOD
CIVIL - POST -CONVICTION RELIEF
POST- CONVICTION RELIEF DISMISSED
AFFIRMED - 12/06/2005
BEFORE KING, C.J., BRIDGES AND GRIFFIS, JJ.
BRIDGES, J., FOR THE COURT:
¶1.
Omar Moody appeals the denial of his “Motion for Modification of Sentence” because (1) the trial
court misconstrued his motion as a post conviction relief motion and (2) a constitutional violation occurred
during sentencing.
STATEMENT OF FACTS
¶2.
On February 12, 1999, Omar Moody plead guilty to forgery that resulted from writing a forged
check to a pizza delivery person for forty dollars. The Circuit Court of Lowndes County entered a five
year sentence with the Mississippi Department of Corrections but suspended all five years. In April 2000,
the court revoked Moody’s suspension and placed him in custody since Moody failed to report, failed to
pay supervision fees, and failed to pay court ordered fees. Moody states that this happened because a
close family member died leading to a depression that caused him to turn to drugs and alcohol.
¶3.
Moody filed a motion to have the circuit court apply time spent in a Lowndes County jail and an
Ocala, Florida jail towards his five year sentence. The circuit court denied this order because, “The
Petitioner was sentenced during a previous term of court which has since ended and as such this Court has
lost jurisdiction as to the sentencing of Petitioner.”
ANALYSIS
I.
¶4.
Moody first contends that he did not file a post- conviction motion but alternatively a motion to
modify his sentence. However he fails to give any reason that the court should over look the procedural
bar that denied his motion. The State cites Presley v. State, 792 So. 2d 950, 954(¶18) (Miss. 2001) that
states, “We have held that, in the absence of a statute authorizing a modification of a sentence, ‘once a case
has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its
judgment.’”(quoting Harrigill v. State, 403 So.2d 867, 868-69 (Miss. 1981). Unless Moody entered the
motion before the end of the term he cannot have the circuit court modify it. Accordingly, the circuit court
correctly dismissed this motion and procedurally barred Moody’s appeal.
II.
¶5.
Moody secondly contends that the trial court made a constitutional error in sentencing him since
he suffers from a mental disorder, namely depression. Moody fails to note which constitutional provision
this violates and also fails to cite any law on this point. Since he did not cite any case law the court does
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not have to review this point. Bell v. State, 769 So.2d 247, 256 (¶28)(Miss. Ct. App. 2000)(citing
Cavett v. State, 717 So.2d 722, 724 (Miss. 1998)).
¶6.
Furthermore, depression acts merely as a mitigating factor and does not guarantee Moody a
different outcome had the trial court discussed any mitigating factors with him. At his plea hearing Moody
testified that he was not seeking treatment for any mental illness at that time. The Court clearly did not err
in failing to apply this as a mitigating factor just as the appellant in Crowell did not receive ineffective
assistance of counsel by not having an attorney to present his mitigating factors in Crowell v. State, 801
So.2d 747 (Miss. Ct. App. 2000). Regardless, the change in the term of the court procedurally barred
Moody from presenting this appeal affirming the circuit court’s dismiss of this motion.
¶7.
THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO LOWNDES COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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