Daggans v. State, No. 97-CA-00236-COA
| Decision Date | 29 June 1999 |
| Docket Number | No. 97-CA-00515., No. 97-CA-00236-COA |
| Citation | 741 So.2d 1033 |
| Parties | Kenneth DAGGANS, a/k/a Kenneth Bernard Daggans, Appellant, v. STATE of Mississippi, Appellee. Kenneth Daggans, a/k/a Kenneth Bernard Daggans, Appellant, v. State of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Kenneth Daggans, Appellant, pro se.
Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.
BEFORE McMILLIN, C.J., COLEMAN, AND PAYNE, JJ.
COLEMAN, J., for the Court:
¶ 1. Kenneth Daggans appeals from the order denying relief which the Circuit Court of the First Judicial District of Harrison County rendered after it conducted an evidentiary hearing on Daggans's "writ of habeas corpus," which the circuit court elected to "treat[] as a Petition for Post Conviction Relief pursuant to Section 99-39-3." Daggans presents five issues for our review and resolution, which we quote verbatim from his statement of issues required by Mississippi Rule of Appellate Procedure 28(a)(3):
¶ 2. We affirm the circuit court's denial of relief on Daggans's post conviction petitions.
¶ 3. On August 30, 1991, Daggans entered pleas of guilty to four felonies: (1) aggravated assault, (2) burglary of a dwelling house, (3) burglary of a dwelling house, and (4) possession of burglary tools. Daggans had been indicted for the first felony, aggravated assault; and he waived indictment on the other three felonies to which he entered pleas of guilty. Daggans was represented by counsel, who participated actively in the trial court's hearing on whether it should accept his pleas of guilty to these four felonies. After its exhaustive questioning of Daggans, the trial court found as follows:
Pursuant to the State's recommendation made in accordance with a "plea bargain" with Daggans's counsel, the trial court sentenced Daggans to serve "twenty years on the aggravated assault, ten [years] on each of the burglaries, five [years] on the possession [of burglary tools], suspend[ed] all but eight [years], and require[d] that [Daggans] serve eight years." All four sentences were to run concurrently.
¶ 4. After the judge imposed these four sentences upon Daggans, Daggans's counsel asked the judge to affirm counsel's representation to Daggans that "this eight years would be with parole." The judge replied, Only then did the judge add:
[T]here's one thing I forgot. I don't think it's on the recommendation, but I am going to do this. Since I'm suspending a substantial period of time, I'm going to put him [Daggans] on four years' probation after release under parole.
The judge elaborated: "You'll be on probation, reporting probation with this Court after you're released from Parchman, but you are eligible for parole on the eight-year sentence." Daggans responded, "Yes, Sir." Regardless of Daggans's positive response, the judge continued:
The only thing about it is this. If you get in trouble after you get out of Parchman, if I revoke your probation, that means I can go all the way back up and give you the rest of the twenty years. You understand what I'm saying?
Daggans again answered, "Yes, Sir." Thus ended the hearing on whether Daggans's four pleas of guilty were voluntary.
¶ 5. Dated the same day of Daggans's guilty pleas was the circuit court's "Sentencing & Probation Order," in which the circuit court included its sentences which we related. This order also provided that "[u]pon release from the custody of the Mississippi Department of Corrections the defendant is hereby placed under the supervision of the Mississippi Department of Corrections for a period of FOUR (4) YEARS on PROBATION...." Among the conditions upon which the circuit court imposed this four-year period of probation were these:
¶ 6. Daggans "flat-timed" his sentence of eight years and was discharged from the custody of the Mississippi Department of Corrections on April 12, 1995, after he had served approximately four and one-half years. Less than four months later, Daggans's probation officer filed a petition to revoke probation, in which the probation officer asserted that Daggans had "violated the terms and conditions of his probation... by testing positive for the use of cocaine on a urine sample obtained on 5/4/95 ... [and] by failing to report for the months of May, June and July, 1995...." The circuit court conducted a hearing on the petition to revoke, during which Daggans admitted the previously quoted allegations because he "had a drug problem... and wanted some help for it." The circuit court terminated Daggans's probation and ordered him to serve the balance of his sentences for aggravated assault and the two burglaries of a dwelling house.
¶ 7. Daggans filed a "notice of appeal on writ of habeas corpus petition," on which the circuit court conducted a hearing pursuant to an order of the Mississippi Supreme Court that the circuit court conduct a full hearing on this pleading. The circuit court conducted the hearing on May 19, 1997. The attorney who had represented Daggans on August 30, 1991, when the circuit court had accepted Daggans's four pleas of guilty, represented Daggans at this latter hearing. Daggans testified that he did not know that he had been placed on probation until April 11, 1995, the day before his discharge from the custody of the Mississippi Department of Corrections. Daggans also testified that "[t]he courts didn't send me [the sentencing and probation order dated August 30, 1991] until 1996." Daggans complained that the sentencing and probation order erroneously listed another lawyer as his lawyer rather than the correct attorney, Tom Sumrall, who had been the only attorney to represent him. Daggans further complained, correctly this Court notes, that he had not signed beneath the statement, "I accept the above probation in accordance with the terms thereof."
¶ 8. After Daggans concluded his testimony, the assistant district attorney moved to dismiss Daggans's petition because it was "filed out of time." The judge found:
The Court finds that taking this particular [sentencing and probation] order, together with the transcript [of the hearing on the voluntariness of the pleas of guilty], that the defendant's sentence was duly pronounced in open court and the defendant was placed on notice as to what his sentence was. In addition to that, by the defendant's own acknowledgment, the day before he was released from Parchman, he was aware that he was to report for probation.
Consistent with the foregoing finding, the circuit court entered its order denying relief "on all post conviction petitions," but allowed Daggans "to proceed in forma pauperis." It is from this order denying relief that Daggans has appealed.
¶ 9. Other than the assistant district attorney's passing reference to Daggans's having "filed out of time" his petition, to which we previously referred, the State never moved the circuit court to dismiss the petition because Daggans did not file it until more than three years after August 30, 1991, the date that the circuit court had accepted Daggans's four pleas of guilty. Section 99-39-5(2) establishes certain time limitations within which a prisoner may seek post conviction relief. The portion of this section seemingly relevant to the date when Daggans filed his petition reads as follows:
A motion for relief under this chapter shall be made ... in case of a guilty plea, within three (3) years after entry of the judgment of conviction.... Likewise excepted [from this three year limitation] are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.
Miss.Code Ann. § 99-39-5(2) (Supp.1998).
¶ 10. The State did not confront the circuit court with the issue of whether Daggans's petition ought to have been dismissed because Daggans had filed it on November 19, 1996, a date more than three years after August 30, 1991. Instead, the circuit court conducted a hearing on Daggans's petition on May 19, 1997, after the Mississippi Supreme...
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Magee v. State, 2013–CP–01121–COA.
...is not subject to the time[-]bar of section 99–39–5(2).” Leech v. State, 994 So.2d 850, 853 ( ¶ 9) (Miss.Ct.App.2008) (citing Daggans v. State, 741 So.2d 1033, 1037 ( ¶ 12) (Miss.Ct.App.1999)). Accordingly, we find that Magee's PCR motion is excepted from the procedural time-bar. Neverthele......
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Leech v. State, No. 2007-CP-00566-COA.
...added). A post-conviction claim alleging unlawful revocation of probation is not subject to the time bar of section 99-39-5(2). Daggans v. State, 741 So.2d 1033, 1037(¶ 12) (Miss.Ct.App.1999); see also Jackson v. State, 965 So.2d 686, 690(¶ 11) (Miss.2007) (a motion for post-conviction reli......
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Magee v. State
...is not subject to the time[-]bar of section 99-39-5(2)." Leech v. State, 994 So. 2d 850, 853 (¶9) (Miss. Ct. App. 2008) (citing Daggans v. State, 741 So. 2d 1033, 1037 (¶12)(Miss. Ct. App. 1999)). Accordingly, we find that Magee's PCR motion is excepted from the procedural time-bar. Neverth......
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Reed v. State
...to the crime charged, he would have to be willing to accept a sentence of twelve years imprisonment. The case of Daggans v. State, 741 So.2d 1033 (Miss.Ct.App.1999) addresses this issue on point. The Daggans court Moore v. State, 394 So.2d 1336, 1337 (Miss.1981) disposes of Daggans's argume......