Cole v. State

• Decision Date: 31 August 1992
• Docket Number: No. 90-KA-1094,90-KA-1094
• Citation: 608 So.2d 1313
• Parties: West COLE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1313

608 So.2d 1313

West COLE v. STATE of Mississippi.

No. 90-KA-1094.

Supreme Court of Mississippi.

Aug. 31, 1992.

Rehearing Denied Dec. 3, 1992.

Dewitt L. Fortenberry, Jr., Mendenhall, James W. Craig, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

McRAE, Justice, for the Court:

On January 21, 1957, West Cole entered a plea of guilty to manslaughter in the Circuit Court of Coahoma County. He was sentenced to serve one year in jail. Subsequently, Cole was convicted of capital murder and sentenced to death. See Cole v. State, 525 So.2d 365 (Miss.1987), cert. denied 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988), reh'g. denied 488 U.S. 1023, 109 S.Ct. 826, 102 L.Ed.2d 815 (1989). This manslaughter conviction was used as an aggravating circumstance at the sentencing phase of Cole's capital murder trial. ¹

On April 2, 1989, Cole filed a motion pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA), to vacate and set aside the judgment on the ground that he was not represented by a lawyer during the court proceedings. On January 2, 1990, Cole amended his motion to include as an additional ground for relief the charge that he was incompetent to plead guilty in 1957. The trial court considered and summarily denied the motion, holding Cole barred by the three year statute of limitations found in the UPCCRA. We affirm.

I.

Cole maintains that he is excepted from the procedural bar of the UPCCRA because (1) intervening decisions have been rendered which would have adversely affected the outcome of his conviction, and (2) his charge of violation of constitutional due process rights may not be procedurally barred. He attached to his motion a copy of the Coahoma County Circuit Court docket in the 1957 cause which left blank the space provided for entry of the name of defendant's counsel.

The State has responded that (1) Cole's attack on the 1957 judgment was made for the purpose of impacting the validity of his death sentence, (2) Cole's claims are barred by the three year statute of limitations of the UPCCRA, Miss.Code Ann. Sec. 99-39-5(2) (Supp.1991), (3) the intervening decisions cited by Cole were decided prior to the running of the statute of limitations, and, therefore, could have been raised sooner, and (4) the minutes of the Court regarding the 1957 manslaughter conviction recite that Cole was represented by counsel during the court proceedings.

Aggrieved by the adverse decision of the trial court, Cole appeals, contending:

(1) His mental incompetence tolls the running of the statute of limitations;

(2) The Mississippi Uniform Post-Conviction Collateral Relief Act's abolition of the common law writ of post-conviction habeas corpus, Sec. 99-39-3(1), in conjunction with the three year statute of limitations, Sec. 99-39-5(2), acts as a suspension of the writ of habeas corpus in violation of the Mississippi Constitution of 1890, art. 3, Secs. 14, 21, and the Eighth and Fourteenth Amendments to the United States Constitution;

(3) The intervening decision of Johnson v. Mississippi and Johnson v. State except his petition from the statute of limitations;

(4) He is entitled to an evidentiary hearing on his claims.

II.

DOES WEST COLE'S ALLEGED INCOMPETENCE TOLL THE RUNNING OF

THE STATUTE OF LIMITATIONS?

Cole alleges that Miss.Code Ann. Sec. 15-1-59 (Supp.1991) prevents application of the three year statute of limitations of the UPCCRA. Miss.Code Ann. Sec. 15-1-59 (Supp.1991) provides:

If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

Simply put, the limitation period provided by Miss.Code Ann. Sec. 99-39-5(2) is not subject to the savings clause in Miss.Code Ann. Sec. 15-1-59. The savings clause in Sec. 15-1-59 applies only to actions mentioned in Chapter 1, Title 15 of the Mississippi Code of 1972, and we have clearly held so on at least two occasions.

In Foster v. Yazoo and MVR Co., 72 Miss. 886, 18 So. 380 (1895), the plaintiff sought to recover for his father's wrongful death. The statute of limitations was asserted as a defense. Plaintiff responded that he was an infant at the time of the alleged wrongful act, that he had not been represented by a guardian and his action was not barred because of the saving statute. We held that the saving statute applied only to actions mentioned in the Code chapter on "limitations of actions", which did not include the wrongful death statute.

Foster was cited with approval in Arender v. Smith County Hospital, 431 So.2d 491 (Miss.1983). In Arender we rejected the argument that the time for bringing a wrongful death action was subject to the savings clause of Sec. 15-1-59 and stated:

The above statute specifically reserves the tolling of the limitation period to those personal actions mentioned within the chapter of which the wrongful death act is not one.

* * * * * *

The statute of limitations does not look to the character of the plaintiff, but to the nature of the action. This is not so as to a savings clause. It contemplates the person, and not the action. The claim to exemption is against the current of the law, and not coextensive with its effective provisions. In case of doubt, therefore, the presumption is against the one claiming the exemption. The savings of the statute are not to be as liberally construed as its effective provisions, because they are designed to put an end to strife and litigation, and tend to the security of all men.

Arender 431 So.2d at 492, 493, 494.

Our Post-Conviction Relief Act is not anywhere mentioned Miss.Code Ann. Sec. 15-1-1 et seq. (Supp.1991), and, therefore, is not subject to the savings provision in Sec. 15-1-59. Moreover, there is no language in the UPCCRA providing that such an exception tolls the statute of limitations of the act. There is no merit to this claim.

Also, remember that Cole attacks a plea and conviction which occurred in 1957, and was later used against him in capital murder proceedings. The savings clause of Sec. 15-1-59 provides in pertinent part that "the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years."

Cole was thus entitled to bring an action attacking his 1957 plea and conviction for more than 32 years before he got around to filing the pleadings for this purpose. The enactment of our UPCCRA did not create new notions of jurisprudence, but instead simply codified review constraints traditionally practiced by this Court. Irving v. State, 498 So.2d 305, 308 (Miss.1986). Our articulations in Irving make this abundantly clear.

Thus, even assuming (and we do so here only arguendo) Cole's right to challenge the 1957 plea and conviction was preserved and prolonged by the savings clause of Sec. 15-1-59, it nevertheless expired in 1978 by the plain provisions of the statute. This occurred six years prior to the enactment of our UPCCRA. Under these circumstances, Sec. 15-1-59 does not toll the running of our UPCCRA limitations clock. To hold otherwise would be tantamount to holding that enactment of our UPCCRA revived and resurrected Cole's claim. We should not ascribe such an illogical, unreasonable, and irrational intent or purpose to the legislature. Surely, when considering codification of our UPCCRA, the legislature knew that:

(a) a right of action may not be revived by the legislature after it has been barred by the statute of limitations, see generally; 51 Am.Jur.2d, Limitation of Actions, Sec. 46 (1970);

(b) the enumeration of exceptions to the time limitations of the UPCCRA by implication excluded all others, see generally 51 Am.Jur.2d, Limitation of Actions, Sec. 57 (1970);

(c) the rule that courts will not read exceptions into a statute of limitations applies to persons of mental incompetency or incapacity, see generally 51 Am.Jur.2d, Limitation of Actions, Sec. 186 (1970); and

(d) a time limitations statute containing no exception in favor of persons under legal disability runs against the right of action existing in favor of such person, and, upon the expiration of the limitations period, bars the right to sue to the same extent and with the same effect as if he or she were a person sui juris, see generally 51 Am.Jur.2d, Limitation of Actions, Sec. 178 (1970).

The primary purpose of statutory time limitations is to compel the exercise of a right of action within a reasonable time. These statutes are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected. They are designed to suppress assertion of false and stale claims, when evidence has been lost, memories have faded, witnesses are unavailable, or facts are incapable of production because of the lapse of time.

Accordingly, the fact that a barred claim is a just one or has the sanction of a moral obligation does not exempt it from the limitation period. These statutes of repose apply with full force to all claims and courts cannot refuse to give the statute effect merely because it seems to operate harshly in a given case. The establishment of these time boundaries is a legislative prerogative. That body has the right to fix reasonable periods within which an action shall be brought and, within its sound discretion, determine the limitation period. See generally 51 Am.Jur.2d, Limitation of Actions, Secs. 12, 17, 18, 19 (1970). The legislature likewise has the right and power to exclude exceptions in the case of persons non compos...