Leslie J. Cortez v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-00581-COA
LESLIE J. CORTEZ A/K/A LESLIE CORTEZ
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
02/19/2008
HON. WILLIAM E. CHAPMAN III
RANKIN COUNTY CIRCUIT COURT
LESLIE J. CORTEZ (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
APPEAL DISMISSED: 04/21/2009
BEFORE KING, C.J., IRVING AND ROBERTS, JJ.
KING, C.J., FOR THE COURT:
¶1.
Leslie J. Cortez appeals the judgment of the Rankin County Circuit Court which
dismissed his motion for post-conviction relief pursuant to Mississippi Code Annotated
section 99-39-11(2) (Rev. 2007). Aggrieved, Cortez raises these issues on appeal: (1)
whether the trial court abused its discretion by failing to grant a jury instruction on the lesserincluded offense of trespassing; (2) whether the trial court’s response to a question from the
jury during deliberation was an improper comment on the evidence; and (3) whether Cortez
was denied a fair trial by the unprofessional actions of his trial counsel.
FACTS
¶2.
Cortez was indicted in January 2001 by a Rankin County grand jury for burglary of
a dwelling house pursuant to Mississippi Code Annotated section 97-17-23 (Rev. 2006).
Cortez was tried and convicted on July 16, 2002. On July 19, 2002, Cortez was sentenced
as a habitual offender to serve twenty-five years in the custody of the Mississippi
Department of Corrections. As a habitual offender, Cortez is ineligible for parole or
probation pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007).
¶3.
Cortez filed a motion for a new trial or, in the alternative, a judgment notwithstanding
the verdict on July 23, 2002, which was denied. Aggrieved, Cortez filed an appeal, but the
judgment of the trial court was affirmed by this Court on December 2, 2003, in Cortez v.
State, 876 So. 2d 1026, 1032 (¶30) (Miss. Ct. App. 2003). Thereafter Cortez filed a motion
for rehearing, which was denied by this Court.
¶4.
On January 29, 2004, Cortez filed a petition for writ of certiorari, which was denied
on July 6, 2004, by the Mississippi Supreme Court. On January 31, 2008, Cortez filed a
motion to vacate his judgment of conviction and sentence. The trial court construed this
motion as a motion for post-conviction relief and dismissed the motion on February 21,
2008, pursuant to Mississippi Code Annotated section 99-39-11(2). Section 99-39-11(2)
provides that: “If it plainly appears from the face of the motion, any annexed exhibits and
the prior proceedings in the case that the movant is not entitled to any relief, the judge may
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make an order for its dismissal[.]” Feeling aggrieved by the judgment of the trial court
dismissing his motion for post-conviction relief, Cortez now appeals.
ANALYSIS
¶5.
Cortez makes three arguments as to the trial court’s dismissal of his motion for post-
conviction relief. However, because Cortez failed to seek permission from the supreme
court to seek post-conviction relief, this Court lacks jurisdiction to decide Cortez’s appeal.
¶6.
Where a criminal defendant's case is affirmed on direct appeal, Mississippi Code
Annotated section 99-39-7 (Rev. 2007), mandates that he obtain permission from the
Mississippi Supreme Court to seek post-conviction relief from the trial court. “This
procedure is not merely advisory, but jurisdictional.” Doss v. State, 757 So. 2d 1016, 1017
(¶6) (Miss. Ct. App. 2000). In this case, Cortez failed to obtain the required permission from
the supreme court to seek relief; therefore, the trial court lacked jurisdiction to entertain
Cortez’s motion for post-conviction relief and properly dismissed the motion for the lack of
jurisdiction. If the circuit court did not have jurisdiction to address the defendant’s motion
for post-conviction relief, the appellate court is also without jurisdiction. Wheeler v. State,
903 So. 2d 756, 758 (¶6) (Miss. Ct. App. 2005). Because the Rankin County Circuit Court
did not have jurisdiction to hear Cortez’s motion for post-conviction relief, we too are
without jurisdiction to hear this appeal.
¶7.
Therefore, we dismiss this appeal for lack of jurisdiction.
¶8.
THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO RANKIN COUNTY.
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LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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