Buice v. State

• Decision Date: 09 November 1999
• Docket Number: No. 1998-CA-01156-COA.,1998-CA-01156-COA.
• Citation: 751 So.2d 1171
• Parties: Raymond BUICE a/k/a Robert Buice, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

751 So.2d 1171

Raymond BUICE a/k/a Robert Buice, Appellant, v. STATE of Mississippi, Appellee.

No. 1998-CA-01156-COA.

Court of Appeals of Mississippi.

November 9, 1999.

Rehearing Denied February 8, 2000.

Falton O. Mason, Jr., Attorney for Appellant.

Office of the Attorney General By Jean Smith Vaughan, Attorney for Appellee.

BEFORE McMILLIN, C.J., DIAZ, AND LEE, JJ.

LEE, J., for the Court:

¶ 1. On June 22, 1998, Honorable Andrew Cleveland Baker denied Raymond Buice's second petition for post conviction relief. It is from this denial that Buice perfects his appeal to this Court and argues the following issues on appeal (1) whether the trial judge erred in denying his petition for post conviction relief, (2) whether the trial judge erred in revoking his suspended sentence, and (3) whether his suspended sentence was unlawfully revoked and he is being unlawfully held in custody. Finding these arguments without merit, we affirm.

FACTS

¶ 2. Buice was convicted on felony bad check charges, by guilty plea, entered on October 5, 1990, in Cause No. CR-90-30-B (P1). On October 19, 1990, Buice was convicted on a felony bad check charge, by guilty plea, entered on October 19, 1990, in Cause No. CR-90-44-B (P2). Additionally, on October 19, 1990, the court imposed sentencing for Cause No. CR-90-30-B (P1) and Cause No. CR-90-44-B (P2).

¶ 3. On October 19, 1990, in Cause No. CR-90-30-B(P1), the court imposed a separate sentence of three years on counts one, two, and three to run consecutively and ordered restitution. In Cause No. CR-90-44-B(P2), the court imposed a sentence of three years to be served concurrently with the sentence imposed on CR-90-30-B(P1). The trial court then instructed Buice that the imposition of his sentence was suspended contingent on his good behavior, and on the condition that Buice made restitution at the rate of $100 per month beginning November 1, 1990.

¶ 4. Subsequently, the State determined that Buice failed to meet the condition of good behavior and filed a petition to revoke suspended sentence and an amended petition to revoke sentence. On May 30, 1996, a revocation hearing was held, and the trial judge held that Buice had violated the good behavior condition of his suspension. The trial judge revoked the suspension of the sentence which had been issued on October 19, 1990.

¶ 5. On August 11, 1997, Buice filed a petition for post conviction relief asserting that since his suspended sentence was revoked after five years it was unlawful and he was unlawfully being held in custody. On September 2, 1997, the trial judge denied the petition. On April 24, 1998, Buice filed a second petition for post conviction relief which contained the same arguments as asserted in his aforementioned petition of August 11, 1997. On June 22, 1998, the trial judge dismissed the petition for post conviction relief as res judicata.

ISSUES

I. WHETHER THE TRIAL JUDGE ERRED IN DENYING BUICE'S PETITION

FOR POST CONVICTION RELIEF.

II. WHETHER THE TRIAL JUDGE ERRED IN REVOKING THE SUSPENDED SENTENCE OF BUICE.

III. WHETHER BUICE'S SUSPENDED SENTENCE WAS UNLAWFULLY REVOKED AND HE IS UNLAWFULLY BEING HELD IN CUSTODY.

¶ 6. This Court has reviewed the above referenced arguments asserted by Buice, the record, as well as applicable statutory and case law and concludes that Buice is procedurally barred on his successive petition for post conviction relief. Buice has raised the same arguments on appeal as those raised in his two prior petitions for post conviction relief. Those contentions being that the trial court erred when the judge revoked his suspended sentence and he is currently being unlawfully held in the custody of the department of corrections. Buice argues that under Mississippi Code Annotated sections 47-7-37 (Supp.1998) and 99-39-27(9) (Supp. 1998) he is entitled to the relief sought which is his release from custody.

¶ 7. Buice has extracted the following statements of law from section 47-7-37: "The period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation. Such period with any extension thereof shall not exceed five (5) years...." Additionally, Buice selected the following language from section 99-39-27(9):

The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this chapter. Excepted from this prohibition.... Like-wise exempted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

¶ 8. In both petitions, Buice argued that his suspended sentence/probation was unlawfully revoked and he was being unlawfully held in custody. There were no additional contentions made by Buice in his second petition for post conviction relief. Buice's first motion was not dated and signed and was dismissed by the trial judge as being without merit. As aforementioned, Buice's second motion was denied by the trial judge as res judicata. "Any such points raised in the application which have been previously litigated and decided at trial or on appeal are res judicata and barred." Edwards v. Thigpen, 433 So.2d 906, 907 (Miss.1983) (citations omitted). Since Buice brought forth the same arguments in both petitions and the judge had ruled on the merits as to the first petition, he is now procedurally barred pursuant to the doctrine of res judicata. Our law presumes that the judgment of the trial court is correct, and the appellant has the burden of demonstrating some reversible error to this Court. Pierre v. State, 607 So.2d 43, 48 (Miss.1992). However, when one appeals a matter and is attempting to prove to this Court that the trial court has committed reversible error it must be done within the confines of statutory, case, and procedural law. Buice failed to follow the mandated procedures and in doing so he is now barred from arguing reversible error by the trial court. In Smith v. State, 434 So.2d 212, 220 (Miss.1983), the Mississippi Supreme Court stated as follows:

The fair and orderly administration of justice dictates that a person accused of a crime be afforded the opportunity to present his claims before a fair and impartial tribunal. It does not require that he be given multiple opportunities to "take a bite at the apple." Likewise, the orderly administration of justice does not require this Court to "lead a defendant by the hand" through the criminal justice system. It is this Court's responsibility to provide a meaningful opportunity for defendant to raise his claims and have them adjudicated.

Buice was given this opportunity.

¶ 9. The exceptions under Mississippi Code Annotated section 99-39-27(9) only allow the filing of a successive writ if the argument presented within the writ falls under one of the exceptions and has not been previously argued and a decision rendered on the merits by the trial court. In Sneed v. State, 722 So.2d 1255, 1256 (Miss. 1998), Sneed had filed two petitions for post-conviction relief. The first petition was denied. Id. Sneed filed a motion to reconsider his post-conviction motion and again it was denied. Id. It was not until after the second denial that Sneed proceeded with the appeal process. Id. The supreme court held that since Sneed failed to file a timely appeal after the first petition was denied, his appeal on the successive writ was out-of-time, and he was barred from bringing a successive motion. Id. To support the holding of the court it cited Miss.Code Ann. section 99-39-27(9) (Supp.1998) which provides, "The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this chapter."

¶ 10. Similar to Sneed, Buice did not pursue an appeal after the court denied his first petition. Since Buice presented the same arguments in his second petition, he was in effect requesting the trial court to reconsider its prior judgment. When the court failed to reverse its prior decision, Buice filed his appeal. Just as in Sneed, Buice's appeal is out-of-time. This Court, therefore, finds that the trial judge was not in error in dismissing Buice's successive petition as res judicata.

¶ 11. The second petition filed by Buice is also time barred under Miss.Code Ann. section 99-39-5(2) (Supp.1998) which states in part:

A motion for relief under this chapter shall be made within three (3) years after the time in which the prisoner's direct appeal is ruled upon by the Supreme Court of Mississippi or ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction. 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.

Buice's first petition for post-conviction relief would have come within the exception; however, since he failed to proceed with appellate action after its denial the second petition is now time-barred.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.

BRIDGES, DIAZ, PAYNE, AND THOMAS, JJ., CONCUR.

SOUTHWICK, P.J., CONCURS

WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., AND BRIDGES, J. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J.

MOORE, J., NOT PARTICIPATING.

SOUTHWICK, P.J., concurring.

¶ 13. The majority concludes that Buice is procedurally barred from complaining about the revocation of his probation. Though I agree with the ultimate decision, I find the explanation of the procedural waiver too absolute. Therefore I write separately.

¶ 14. First I emphasize the facts that are central to my view. Buice received three consecutive three-year sentences, but the sentences were suspended contingent on Buice's good behavior and other conditions. I agree that...