Jon Kurrie Peterson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01438-COA
JON KURRIE PETERSON
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
7/23/2008
HON. ROGER T. CLARK
HARRISON COUNTY CIRCUIT COURT
JON KURRIE PETERSON (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED: 09/29/2009
BEFORE MYERS, P.J., ISHEE AND MAXWELL, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Jon Kurrie Peterson filed a pro se “Motion to Vacate Judgment and Sentence or in the
Alternative Motion for New Trial with Brief in Support” in the Circuit Court of Harrison
County on April 22, 2008. The circuit court took Peterson’s motion as one for postconviction relief and dismissed it for want of jurisdiction, citing Mississippi Code Annotated
section 99-39-7 (Rev. 2007), which requires that a prisoner, whose conviction and sentence
have been affirmed on appeal, must seek leave of the supreme court before filing a motion
for post-conviction relief in the trial court. Peterson now appeals that judgment, asserting
numerous errors. Finding no error, we affirm.
FACTS
¶2.
Peterson was convicted of murder and arson on April 19, 1996. His conviction was
appealed to the supreme court, and this court affirmed it on March 9, 1999. Peterson v.
State, 740 So. 2d 940 (Miss. Ct. App. 1999). Since then, Peterson apparently sought postconviction relief in the trial court, which was dismissed for failure to secure leave of the
supreme court. He then sought leave of the supreme court, under cause number 2002-M01410, which was denied. In 2008, Peterson again sought leave, this time under cause
number 2008-M-01322, but it was again denied.1
¶3.
Undeterred by the supreme court’s refusal to grant him permission to do so, Peterson
filed the instant motion in the trial court, which was dismissed for want of jurisdiction.
DISCUSSION
¶4.
Mississippi Code Annotated section 99-39-7 states in pertinent part:
[A motion seeking post-conviction relief] shall be filed as an original civil
action in the trial court, except in cases in which the prisoner’s conviction and
sentence have been appealed to the supreme court of Mississippi and there
affirmed or the appeal dismissed. Where the conviction and sentence have
been affirmed on appeal or the appeal has been dismissed, the motion under
this article shall not be filed in the trial court until the motion shall have first
been presented to a quorum of the justices of the supreme court of Mississippi,
convened for said purpose either in term-time or in vacation, and an order
1
We note that the supreme court warned Peterson that he might be subject to
sanctions under Mississippi Rule of Appellate Procedure 22(a) if he persisted in filing
frivolous motions before that court.
2
granted allowing the filing of such motion in the trial court.
A prisoner whose conviction and sentence have been affirmed on appeal must therefore seek
leave of the supreme court to proceed on post-conviction relief in the trial court. Absent such
permission, the trial court is without jurisdiction to hear a motion for post-conviction relief.
Perry v. State, 759 So. 2d 1269, 1270 (¶6) (Miss. Ct. App. 2000).
¶5.
It is clear from the record that the trial court properly took Peterson’s “Motion to
Vacate Judgment and Sentence or in the Alternative Motion for New Trial with Brief in
Support” as a motion for post-conviction relief. As Peterson did not secure leave of the
supreme court to proceed in the trial court, the trial court was without jurisdiction to entertain
Peterson’s motion, and the trial court properly dismissed it for that reason.
¶6.
THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
3
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