Anthony Javon Robinson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-00296-COA
ANTHONY JAVON ROBINSON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
1/4/2007
HON. R.I. PRICHARD, III
MARION COUNTY CIRCUIT COURT
ANTHONY JAVON ROBINSON (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DESHUN TERRELL MARTIN
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 7/1/2008
BEFORE LEE, P.J., BARNES AND ISHEE, JJ.
BARNES, J., FOR THE COURT:
¶1.
Anthony Javon Robinson, proceeding pro se, appeals the Circuit Court of Marion County’s
dismissal of his motion for post-conviction relief. Finding no error, we affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
On May 21, 1998, Robinson was indicted on one count of armed robbery pursuant to
Mississippi Code Annotated section 97-3-79 (Rev. 2006). On August 25, 1999, he pleaded guilty.
On September 3, 1999, the order of conviction was entered, and Robinson was sentenced to twentyfive years in the custody of the Mississippi Department of Corrections (MDOC), with fifteen years
to be served without the possibility of parole, probation, or early work release and the remaining ten
years to be served under post-release supervision.
¶3.
On January 10, 2007, Robinson filed a motion for post-conviction relief, raising the
following grounds: (1) the trial judge erred in advising the petitioner that any sentence he received
would be without the benefit of parole; (2) the trial judge erred in failing to inform the petitioner of
his right to appeal his guilty plea and sentence to the Mississippi Supreme Court; (3) the indictment
failed to set forth the judicial district where the crime occurred; (4) and the indictment failed to
include the name of the individual who aided and abetted the robbery. The circuit court dismissed
this petition on January 12, 2007, finding that the petition was clearly time-barred and that Robinson
had failed to allege any circumstances that would allow for filing outside the required time period.1
Robinson subsequently filed the instant appeal. He asserts the same grounds for relief that he raised
in his motion filed with the circuit court; in addition, he argues that the circuit court erred in
dismissing his motion for post-conviction relief for two reasons: (1) the circuit court’s order
indicates that it considered a different individual’s motion for post-conviction relief and (2) the
circuit court failed to conduct an evidentiary hearing.
STANDARD OF REVIEW
¶4.
A trial court’s denial of post-conviction relief will be disturbed only where that court’s
decision was clearly erroneous. Kirksey v. State, 728 So. 2d 565, 567 (¶8) (Miss. 1999) (citing State
v. Tokman, 564 So. 2d 1339, 1341 (Miss. 1990)). However, the appropriate standard for reviewing
questions of law is de novo. Rice v. State, 910 So. 2d 1163, 1164-65 (¶4) (Miss. Ct. App. 2005)
(citing Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).
DISCUSSION
¶5.
Pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev. 2007), in the case of a
guilty plea, a motion for post-conviction relief must be filed within three years after the entry of the
1
The circuit court also found that Robinson’s flawed indictment argument was without merit
given that a valid guilty plea waives all non-jurisdictional defects in the indictment.
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judgment of conviction. Here, Robinson’s judgment of conviction was entered on September 3,
1999. His motion for post-conviction relief, however, was not filed until January 10, 2007, well
beyond the requisite three-year time period. Accordingly, the circuit court correctly found that
Robinson’s motion for post-conviction relief was time-barred.
¶6.
The circuit court was also correct in finding that Robinson had failed to raise any arguments
which would allow him to file his motion outside of the three-year time period. Section 99-39-5(2)
states in pertinent part:
Excepted from this 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. Likewise excepted are
those cases in which the prisoner claims that his sentence has expired or his
probation, parole or conditional release has been unlawfully revoked. . . .
The supreme court has also held that “petitions alleging an illegal sentence are not subject to the
time bar.” Jackson v. State, 965 So. 2d 686, 690 (¶11) (Miss. 2007) (citation omitted). Robinson
argues that because his claims go to the imposition and terms of his sentence, he could not have
made them until he had served the time required by law and the earned-time credits were not
applied; therefore, he contends that the facts underlying his claims constitute newly discovered
evidence. He also refers to his sentence as “illegal” in portions of his brief.
¶7.
Although Robinson appears to argue that all of his claims are encompassed by the newly
discovered evidence exception, only his claim regarding not being allowed to accumulate earnedtime credits relates to his sentence. With regard to this claim, Robinson argues that the indictment
and the circuit court failed to inform him that he would be eligible for earned time only after serving
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ten years of his sentence.2 He seeks an order directing that he be allowed to accumulate a 15%
earned-time allowance on either his entire sentence or, alternatively, any amount of his sentence
exceeding ten years.
¶8.
Mississippi Code Annotated section 47-5-139(1) (Rev. 2004) governs an inmate’s eligibility
for the earned-time allowance. According to section 47-5-139(1)(e), an “inmate [who] has not
served the mandatory time required for parole eligibility for a conviction of robbery or attempted
robbery with a deadly weapon” is not eligible to accumulate earned time. Mississippi Code
Annotated section 47-7-3(d)(i), which sets forth the mandatory time an individual convicted of
armed robbery must serve before being eligible for parole, states as follows:
No person shall be eligible for parole who shall, on or after January 1, 1977, be
convicted of robbery or attempted robbery through the display of a firearm until he
shall have served ten (10) years if sentenced to a term or terms of more than ten (10)
years or if sentenced for the term of the natural life of such person. . . .
Miss. Code. Ann. § 47-7-3(d)(i) (Supp. 2006). Based on these provisions, Robinson argues that he
should be allowed to accumulate earned time after he has served ten years of his sentence. Section
47-7-3(d)(ii), however, states:
No person shall be eligible for parole who shall, on or after October 1, 1994, be
convicted of robbery, attempted robbery or carjacking as provided in Section
97-3-115 et seq., through the display of a firearm or drive-by shooting as provided
in Section 97-3-109. The provisions of this subparagraph (d) (ii) shall also apply to
any person who shall commit robbery, attempted robbery, carjacking or a drive-by
shooting on or after October 1, 1994, through the display of a deadly weapon[.]
Miss. Code Ann. § 47-7-3(d)(ii) (Supp. 2006). Robinson pleaded guilty and was convicted of armed
robbery in September 1999; therefore, as he was convicted after October 1, 1994, he is not eligible
2
Robinson also states in his brief that (1) he believed that if he entered a plea of guilty to the
indictment, the sentence imposed would not be mandatory and would be served with the full benefit
of earned-time credit, and (2) the circuit court never advised him that he was subject to a sentence
which required that the first ten years be served mandatorily prior to his deciding to plead guilty;
therefore, he was not apprised of the consequences of his guilty plea.
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for parole. Since Robinson is not eligible for parole, he is therefore precluded from accumulating
earned time pursuant to Mississippi Code Annotated section 47-5-139(1)(e). This Court has stated
that:
[P]ursuant to section 47-7-3(1)(d)(ii), a person convicted of armed robbery can never
be eligible for parole, it follows that he may not accrue trusty or earned time pursuant
to sections 47-5-138.1(2)(d) and 47-5-139(1)(e), respectively. It would be “an
absurdity” were this Court to hold that a prisoner who is permanently ineligible for
parole may be allowed to accrue earned-time credits and therefore receive the benefit
of a shortened sentence.
Wells v. State, 936 So. 2d 479, 480 (¶5) (Miss. Ct. App. 2006); see also Cooper v. State, 439 So. 2d
1277, 1278 (Miss. 1983). Thus, as it is clear that Robinson is not entitled to accumulate earned time,
his sentence was not “illegal” so as to except his case from the time bar. Accordingly, the circuit
court did not err in dismissing Robinson’s motion for post-conviction relief without affording him
an evidentiary hearing on this claim.3
CONCLUSION
¶9.
We find that the circuit court did not err in dismissing Robinson’s motion for post-conviction
relief as time-barred. Accordingly, we affirm the judgment of the circuit court.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY DISMISSING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO MARION COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND
ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
3
Robinson also argues that the circuit court erred in considering an individual named Jamie
Christie’s motion for post-conviction relief rather than Robinson’s motion. The first sentence of the
circuit court’s order does refer to “Jamie Christie’s Motion for Relief under the Mississippi Uniform
Post-Conviction Relief Act.” However, the circuit court refers to Robinson by name at the
conclusion of the order, and the reasoning set forth by the circuit court for denying the motion
clearly indicates that Robinson’s motion for post-conviction relief was the one being considered.
Therefore, this issue is without merit.
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