Dennis Dobbs v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-00234-COA
DENNIS DOBBS
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
01/15/2008
HON. LEE J. HOWARD
CLAY COUNTY CIRCUIT COURT
DENNIS DOBBS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 04/21/2009
BEFORE KING, C.J., ROBERTS AND CARLTON, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
A jury sitting before the Clay Country Circuit Court found Dennis Dobbs guilty of
simple assault of a law enforcement officer. After a bifurcated hearing, the circuit court
found that Dobbs qualified for enhanced sentencing as a habitual offender pursuant to
Mississippi Code Annotated section 99-19-81 (Rev. 2007) and sentenced Dobbs to five years
in the custody of the Mississippi Department of Corrections (MDOC).
¶2.
In November 2007, Dobbs filed a motion for post-conviction relief. However, Dobbs
did not file a collateral attack on his 2004 conviction. Instead, Dobbs filed a collateral attack
on a 1990 conviction that, in part, served as the basis of his habitual offender status. Having
found that Dobbs’s motion was frivolous and time-barred, the circuit court summarily
dismissed Dobbs’s motion. Aggrieved, Dobbs appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3.
The record reflects that Dobbs’s long history with the legal system began in January
1990, when he pled guilty to false pretenses and was sentenced to five years in the custody
of the MDOC with all five years suspended and five years of probation. In 1994, Dobbs was
convicted of grand larceny and sentenced to serve five years in the custody of the MDOC.
In July 2002, Dobbs pled guilty to uttering a bad check. Incident to that guilty plea, Dobbs
was sentenced to one year in the custody of the MDOC and two years of post-release
supervision. Dobbs v. State, 932 So. 2d 878, 879 (¶2) (Miss. Ct. App. 2006). Dobbs was
released in 2003, but his post-release supervision was later revoked due to an alcohol
violation. Id. at 880.
¶4.
Dobbs committed simple assault of a law enforcement officer while he was serving
the balance of his sentence for uttering a bad check. Dobbs v. State, 936 So. 2d 322, 324
(¶6) (Miss. Ct. App. 2006). As previously mentioned, the circuit court found that Dobbs was
a habitual offender and then sentenced him to five years in the custody of the MDOC.
¶5.
Dobbs then launched a collateral attack in an attempt to circumvent his habitual
offender status. That is, Dobbs filed a collateral attack on his underlying conviction from
1990. To be precise, on November 13, 2007, Dobbs filed what he called a “Motion [for]
Permission to [P]roceed Out of Time.” The circuit court dismissed Dobbs’s motion after it
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found that the motion was frivolous and time-barred. Dobbs appeals.
STANDARD OF REVIEW
¶6.
We will not reverse a circuit court’s dismissal of a motion for post-conviction relief
unless we find that the circuit court’s decision was clearly erroneous. Williams v. State, 872
So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004). However, when reviewing issues of law, this
Court's proper standard of review is de novo. Id.
ANALYSIS
¶7.
Dobbs raises five issues in his appeal from the circuit court’s decision. According to
Dobbs, when he pled guilty to false pretenses in 1990, his counsel was ineffective, and his
plea was involuntarily and unintelligently made. Additionally, Dobbs claimed that the
circuit court violated his due process rights and sentenced him to an improper “ex-postfacto” law. Dobbs’s reasoning is clear. By attacking the foundation of his habitual offender
status, Dobbs hoped to invalidate his present sentence. However, Dobbs’s motion for postconviction relief is barred for multiple reasons.
I.
¶8.
SUCCESSIVE-WRIT BAR
The circuit court concluded that Dobbs’s motion was barred by the statutory
prohibition against successive writs. According to Dobbs, the circuit court erred. We
disagree.
¶9.
The Mississippi Uniform Post-Conviction Collateral Relief Act delivers a clear
message regarding successive post-conviction relief writs. An order denying a motion for
post-conviction relief is considered a final judgment and a bar to a second or successive
motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2007). Essentially, an appellant is granted
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one bite at the apple when requesting post-conviction relief. See, e.g., Sykes v. State, 919
So. 2d 1064, 1066 (¶8) (Miss. Ct. App. 2005) (holding that a prisoner’s successive claims
were procedurally barred by the prohibition against successive writs as well as res judicata).
¶10.
There are exceptions to this rule, as noted in Retherford v. State, 749 So. 2d 269, 273
(¶9) (Miss. Ct. App. 1999). Pursuant to section 99-39-23(6), a prisoner may file a successive
writ if the argument presented within that writ falls under one of the exceptions, has not been
previously argued, and has not resulted in a circuit court’s decision rendered on the merits.
Stone v. State, 872 So. 2d 87, 89 (¶13) (Miss. Ct. App. 2004). Dobbs bears the burden of
proving that he satisfied at least one of the exceptions to the successive-writ bar. See Carbin
v. State, 942 So. 2d 231, 233 (¶9) (Miss. Ct. App. 2006). Dobbs also has to prove that, even
if he satisfied an exception, the circuit court had not previously entered a decision on the
merits of those claims. Stone, 872 So. 2d at 89 (¶13).
¶11.
Dobbs failed to satisfy his burdens. Dobbs filed a document titled “Traverse to
Appellee’s Answer and Response” with this Court. That document is essentially a reply
brief. Dobbs attached several documents as exhibits to his reply brief. One of those
documents is a motion for post-conviction relief that has a filed stamped date of August 4,
1993. Within that 1993 motion, Dobbs requested collateral relief from his 1990 guilty plea
to false pretenses. Additionally, Dobbs has failed to provide this Court with evidence of
facts that would satisfy any of the exceptions to the successive-writ bar. Likewise, our
review of the record shows no evidence of facts that would satisfy those exceptions.
Accordingly, Dobbs’s motion for post-conviction relief is barred by the statutory prohibition
against successive writs.
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II.
¶12.
TIME BAR
Successive-writ bar notwithstanding, Dobbs’s motion for post-conviction relief is also
time-barred. Dobbs filed his motion for post-conviction relief on November 13, 2007 –
nearly seventeen years after he pled guilty on January 16, 1990. Dobbs had three years from
the entry of the judgment of conviction to file a motion for post-conviction relief. Miss.
Code Ann. § 99-39-5(2) (Rev. 2007). Accordingly, had until January 16, 1993, to file a
motion for post-conviction relief as to this conviction.
¶13.
Section 99-39-5(2) does not, however, subject all post-conviction relief motions to
a three-year statute of limitations. Trotter v. State, 907 So. 2d 397, 401 (¶10) (Miss. Ct. App.
2005). Issues excepted from the time bar include claims that there has been an intervening
decision from the Supreme Court of Mississippi or the United States Supreme Court which
would have adversely affected the outcome of his sentence or that he has evidence, not
reasonably discoverable at the time of trial, that would have caused a different result in the
conviction or sentence. Miss. Code Ann. § 99-39-5(2). Additionally, the Mississippi
Supreme Court has held that the three-year statute of limitations may be waived when a
fundamental constitutional right is implicated. Luckett v. State, 582 So. 2d 428, 430 (Miss.
1991). However, Dobbs has made no such showing that a fundamental right was violated.
¶14.
This Court has previously held that a circuit court properly dismissed as time-barred
a prisoner’s claims that he was subjected to double jeopardy, that his guilty plea was
involuntary, and that he received ineffective assistance of counsel. Trotter, 907 So. 2d at
402 (¶14). In dismissing these claims as time-barred, this Court found that these claims did
not affect the petitioner’s fundamental rights. Id. Likewise, we find that none of Dobbs’s
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claims are exempt from the three-year statute of limitations. It follows that we find no merit
to Dobbs’s claim that the circuit court erred when it found that his motion for postconviction relief was time-barred.
III.
¶15.
CUSTODY REQUIREMENT
Although not addressed by either Dobbs or the State, this Court deems it important
to note that yet another bar exists to Dobbs’s request for post-conviction relief. The very
first sentence of Mississippi Code Annotated section 99-39-5 states that a person eligible for
post-conviction relief must be “in custody under sentence of a court of record of the State
of Mississippi[.]” Miss. Code Ann. § 99-39-5(1) (Rev. 2007). Therefore, post-conviction
relief applies solely to a prisoner who is actually in the custody of the State under a
sentencing order from a Mississippi court. Isaac v. State, 793 So. 2d 688, 690 (¶7) (Miss.
Ct. App. 2001). This Court has refused to grant post-conviction relief because, as with
Dobbs, the petitioner had already completed his complained-of sentence in the State’s
custody and had been discharged therefrom. Durant v. State, 914 So. 2d 295, 297 (¶7)
(Miss. Ct. App. 2005).
¶16.
After Dobbs pled guilty in 1990, he was sentenced to five years of probation. On July
18, 1991, after several probation violations, Dobbs’s probation was revoked, and he was
placed in the custody of the MDOC for the remainder of his sentence. Here, simple math
shows us that Dobbs’s original five-year sentence for false pretenses had ended before he
filed his most recent motion for post-conviction relief. Dobbs is now serving a sentence for
simple assault of a law enforcement officer. His 1990 conviction, along with others,
qualifies him for enhanced sentencing as a habitual offender, but when he filed the
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underlying motion on November 13, 2007, he was not “in custody” as a result of his 1990
conviction. Accordingly, for yet another reason, we find that the circuit court properly
dismissed Dobbs’s motion for post-conviction relief.
¶17. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT DISMISSING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON
AND MAXWELL, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.
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