Eric Roach v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01058-COA
ERIC ROACH A/K/A ERIC SHANE ROACH
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
5/24/2007
HON. JAMES T. KITCHENS JR.
LOWNDES COUNTY CIRCUIT COURT
ERIC ROACH (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 9/23/2008
BEFORE LEE, P.J., ROBERTS AND CARLTON, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
On November 30, 2004, a jury in the Lowndes County Circuit Court found Eric Roach
guilty of armed robbery. Roach was sentenced to serve twenty years in the custody of the
Mississippi Department of Corrections. Roach attempted to file a notice of appeal on
December 22, 2004, but his counsel was not admitted to practice in Mississippi, and the
notice was returned. On December 29, 2005, Roach filed a petition for post-conviction relief
entitled “belated notice of appeal.” The trial court dismissed Roach’s petition finding that
Roach failed to show excusable neglect regarding his out-of-time appeal. Roach did not
appeal that dismissal.
¶2.
On December 13, 2006, Roach filed a motion for post-conviction relief, which was
dismissed. The trial court determined that Roach’s motion was a subsequent filing and that
it should be dismissed as frivolous. Roach now appeals pro se, asserting the following
issues, which we have reworded for clarity as follows: (1) his trial counsel was ineffective;
(2) the sentence imposed upon him was unconstitutionally severe; (3) the trial court failed
to advise him of his right to an appeal; (4) the trial court erred in failing to appoint counsel
for his appeal; and (5) the indictment was faulty.
STANDARD OF REVIEW
¶3.
A trial court’s dismissal of a motion for post-conviction relief will not be reversed
absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872
So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004). However, when issues of law are raised, the
proper standard of review is de novo. Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).
DISCUSSION
¶4.
According to Mississippi Code Annotated section 99-39-23(6) (Rev. 2007), “any
order dismissing the prisoner’s motion or otherwise denying relief under this article is a final
judgment and shall be conclusive until reversed. It shall be a bar to a second or successive
motion under this article.” As Roach failed to file an appeal from the dismissal of his first
motion for post-conviction relief, the trial court’s order became final and beyond review. See
Kemp v. State, 904 So. 2d 1162, 1163 (¶6) (Miss. Ct. App. 2004); Lewis v. State, 797 So. 2d
2
248, 249 (¶2) (Miss. Ct. App. 2001).
¶5.
Section 99-39-23(6) lists various exceptions to the procedural bar; however, Roach
does not assert any applicable exception. This issue is without merit.
¶6.
THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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