Travis Wicker v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01078-COA
TRAVIS WICKER
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
05/08/2008
HON. SAMAC S. RICHARDSON
RANKIN COUNTY CIRCUIT COURT
TRAVIS WICKER (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 02/10/2009
BEFORE LEE, P.J., GRIFFIS AND BARNES, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
On November 30, 1995, in the Rankin County Circuit Court, Travis Wicker pleaded
guilty to murder and two counts of aggravated assault. Wicker was sentenced to a life
sentence for the murder charge and twenty years for each aggravated assault charge. All
sentences were to be served consecutively in the custody of the Mississippi Department of
Corrections.
¶2.
On July 26, 2007, Wicker filed a motion to vacate his sentence. The trial court denied
Wicker’s motion, finding that it was procedurally barred and, regardless of the procedural
bar, without merit. Wicker now appeals, asserting the following: (1) his right against double
jeopardy was violated; (2) his indictment was defective; (3) his trial counsel was ineffective;
and (4) the trial court erred in finding his motion for relief was time-barred. Finding no
merit, we affirm.
STANDARD OF REVIEW
¶3.
A trial court’s denial of post-conviction relief will not be reversed absent a finding
that the trial court’s decision was clearly erroneous. Smith v. State, 806 So. 2d 1148, 1150
(¶3) (Miss. Ct. App. 2002). 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 99-39-5(2) (Rev. 2007), a motion
for post-conviction relief following a guilty plea shall be made “within three (3) years after
entry of the judgment of conviction.” The record reflects that Wicker’s entry of the judgment
of conviction was on November 30, 1995. Wicker did not file his motion for relief within
the statutory time period; thus, his motion for relief is time-barred. There are exceptions to
the three-year statute of limitations found in section 99-39-5(2):
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
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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. . . .
Wicker has failed to meet any of these exceptions to overcome the time bar.
¶5.
However, this statute of limitations does not apply to “errors affecting fundamental
constitutional rights . . . .”
Ivy v. State, 731 So. 2d 601, 603 (¶13) (Miss. 1999).
Nevertheless, “the mere assertion of a constitutional right violation is not sufficient to
overcome the time bar. There must at least appear to be some basis for the truth of the claim
before the limitation period will be waived.” Stovall v. State, 873 So. 2d 1056, 1058 (¶7)
(Miss. Ct. App. 2004). Wicker’s issues concerning the claim of ineffective assistance of
counsel and a defective indictment are encompassed within the three-year limit. Barnes v.
State, 949 So. 2d 879, 881 (¶¶7-8) (Miss. Ct. App. 2007). In Barnes, this Court noted that
an ineffective assistance of counsel claim must be sufficiently supported to overcome the bar.
Id. at 881 (¶7). Wicker has failed to do so in this case. Double jeopardy claims have also
been subjected to the time bar. See Luckett v. State, 582 So. 2d 428, 430 (Miss. 1991);
Trotter v. State, 907 So. 2d 397, 402 (¶14) (Miss. Ct. App. 2005). These issues are without
merit.
¶6.
THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DENYING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, ISHEE, ROBERTS AND
CARLTON, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY.
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