Larry Wayne McKenzie v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01603-COA
LARRY WAYNE MCKENZIE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
09/08/2008
HON. ROBERT WALTER BAILEY
LAUDERDALE COUNTY CIRCUIT COURT
LARRY WAYNE MCKENZIE (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 09/22/2009
BEFORE LEE, P.J., ISHEE AND ROBERTS, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Larry McKenzie filed a motion for post-conviction relief in the Circuit Court of
Lauderdale County. The circuit court dismissed McKenzie’s motion, finding that he had
previously filed two motions for post-conviction relief that had been denied; therefore, his
present motion was procedurally barred as a successive writ. McKenzie timely appealed
from the circuit court’s dismissal of his motion. He argues that the offense he committed did
not occur in Lauderdale County; therefore, the circuit court lacked jurisdiction to accept his
guilty plea. Finding no error, we affirm the circuit court’s dismissal of McKenzie’s motion
for post-conviction relief.
DISCUSSION
¶2.
On appeal of a circuit court’s dismissal of a motion for post-conviction relief, we will
not disturb the court’s factual findings unless they are found to be clearly erroneous.
Williams v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004) (citing Pace v. State, 770
So. 2d 1052, 1053 (¶4) (Miss. Ct. App. 2000)). However, we will review questions of law
under a de novo standard. Id.
¶3.
An order from a circuit court dismissing or denying a party’s motion for post-
conviction relief is a final judgment and is conclusive unless reversed. Miss. Code Ann. §
99-39-23(6) (Supp. 2008). Such an order is a bar to a second or successive motion for postconviction relief. Id. Exceptions to the procedural bar allow a prisoner to file a second or
successive post-conviction relief motion in the following instances: (1) in cases of
“supervening mental illness before the execution of a sentence of death,” (2) if there “has
been an intervening decision of the Supreme Court of either the State of Mississippi or the
United States that would have actually adversely affected the outcome of his conviction or
sentence,” (3) if the prisoner “has evidence, not reasonably discoverable at the time of trial,
which is of such nature that it would be practically conclusive that, if it had been introduced
at trial, it would have caused a different result in the conviction or sentence,” or (4) if the
prisoner’s “sentence has expired or his probation, parole or conditional release has been
unlawfully revoked.” Id.
¶4.
McKenzie has not shown that any of the statutory exceptions apply to the procedural
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bar. He previously filed two motions for post-conviction relief, the denials of which were
affirmed by this Court. See McKenzie v. State, 946 So. 2d 392 (Miss. Ct. App. 2006);
McKenzie v. State, 856 So. 2d 344 (Miss. Ct. App. 2003). In the first case that McKenzie
appealed to this Court, we found that his present argument – that the Circuit Court of
Lauderdale County lacked jurisdiction to accept his guilty plea – was without merit.
McKenzie, 856 So. 2d at 351 (¶21). In both cases, McKenzie filed a petition for writ of
certiorari, and in both cases, the supreme court denied his petitions. See McKenzie v. State,
947 So. 2d 960 (Miss. 2007); McKenzie v. State, 864 So. 2d 282 (Miss. 2004).
¶5.
McKenzie’s motion for post-conviction relief was procedurally barred because it was
untimely filed and because it was a successive writ. Accordingly, we find that the circuit
court properly dismissed McKenzie’s motion for post-conviction relief. This issue is without
merit.
¶6.
THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
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