Dillon v. State, 92-KP-00526
| Decision Date | 18 August 1994 |
| Docket Number | No. 92-KP-00526,92-KP-00526 |
| Parties | Lloyd James DILLON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Lloyd Dillon, pro se.
Michael C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, Ellen Y. Dale, Ridgeland, for appellee.
Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.
In November of 1973 the petitioner Lloyd James Dillon pled guilty to charges of armed robbery and murder and was sentenced to two consecutive life terms. 1 On August 22, 1983, Dillon filed in the Circuit Court of Forrest County a motion titled "Petition for Concurrent of Sentences in Forma Pauperis."
The court papers contain no record of the outcome of that motion. However, on August 26, 1991, Dillon filed a motion in the Circuit Court of Forrest County titled "Petition for Rehearing or in the Alternative Motion for Interlocutory Appeal" which was dismissed by Judge Richard McKenzie on March 24, 1992, on the grounds of res judicata. Without any further record to refer to we are forced to assume that this use of res judicata arose from the 1983 petition.
Dillon appealed on April 16, 1992. He cites as his only issue on appeal:
THIS ISSUE IS NOT RES JUDICATA AND NOT ESTOPPED FROM COLLATERAL ATTACK.
Dillon states in his "Petition for Concurrent of Sentences in Forma Pauperis" that he was, as of 1983:
incarcerated in the Miss. State Correctional Center, Parchman, Mississippi after being sentenced by th(e) Court to terms of two consecutively (sic) Life terms after pleading guilty to indictments turned against him by th(e) County Grand jury during the November 1973 term for charges of Armed Robbery and Murder.
As there are no other documents in this record to confirm or dispute these claims by Dillon, we must assume for the purpose of establishing the minimal facts of the case that they are true.
On August 2, 1983, Dillon filed the above mentioned "Petition for Concurrent of Sentences in Forma Pauperis". In it he claims that after he pled guilty he:
was subsequently transported to the Miss. State Correctional Center to commence Service of said Sentences, Where upon he was under the impression that the said Sentences were running concurrently. Petitioner being ignorant to the field of Law, was not advised by his Court-Appointed Attorney of the fact Petitioner Sentences would run consecutively in Accordance with Section 99-19-21, Miss.Code of 1972, after the serving a number of month's the Petitioner found that his Sentences of Life was [sic] running consecutively because of Miss. Statute 99-19-21 Authorized the Sentences to run consecutively unless the Court specify [sic] the Sentences to run concurrently.
He further claims that:
even tho [sic] his Court-Appointed Attorney did not make him knowledge [sic] of the consequences of his plea of guilty to the indictments of Murder and Armed Robbery, Petitioner feels accounting the laps time (sic) he has served on the sentences since his conviction, he's an [sic] considerable candidate for the relief asked in this Petition....
Dillon appears to claim here that his attorney inadequately informed him about the proper sentences for his crimes. This is the closest that Dillon comes in this petition to raising a specific issue for the lower court to consider. It is difficult to determine this petition's ultimate disposition as the record contains no first-hand account of how it was addressed or even if it was addressed.
On August 22, 1991, Dillon filed a motion titled "Petition for Rehearing or in the Alternative Motion for Interlocutory Appeal." This petition asks the Forrest County Circuit Court to reconsider its August 7, 1991, dismissal of Dillon's "Motion for Proper Sentence(s)." Once again, however, the record proves to be deficient as it contains neither the "Motion for Proper Sentence(s)" nor the order which dismissed it.
The remainder of the August 22 petition consists of a summary of the law of res judicata and a statement that it should not be applied:
Petitioner contends that the present motion herein at barr [sic] has both factual and legal issues which were never decided upon by this court and the ruling on the issues was was [sic] not necessary to the decision in the prior case. i.e., it was dicta.
Petitioner would further submit that he has never filed any post conviction motions for relief with the exception of this present cause after August 1983, and the issues therein pertained to consecutive sentences.
Judge Richard McKenzie dismissed Dillon's "Petition for Rehearing or in the Alternative Motion for Interlocutory Appeal" on March 24, 1992, stating "the Court again finds that the original Petition filed herein is barred since this Court has previously ruled on the same Post-Conviction Writ in 1985." Presumably Judge McKenzie is referring to the order which dismissed Dillon's 1983 petition but as this order is not in the record it is impossible to be sure.
Dillon filed a Notice of Appeal as to this order on April 16, 1992. He designated as the record,
THIS ISSUE IS NOT RES JUDICATA AND NOT ESTOPPED FROM COLLATERAL ATTACK.
Any attempt to analyze this case effectively is quickly thwarted by the inadequacy of the record. To simply establish the most basic facts about the case at bar requires the making of several significant assumptions. Although a few of these stabs in the dark might be permitted as to insignificant collateral matters, to make a full determination of this case the Court would have to blindly guess at the material facts upon which this case turns. This the Supreme Court cannot and should not do. "This Court may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record." Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973).
With this appeal, Dillon is in essence asking this Court to determine the res judicata effect of a judgement that is not in the record. Without having the actual judgement in front of us, it is quite impossible to determine what preclusive effect it might have. Simply put, the record is such that this Court cannot determine this case.
The proper course of action, therefore, is for this Court to remand to the lower...
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Hampton v. State
...it must confine its review to what appears in the record. Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995) (citing Dillon v. State, 641 So.2d 1223, 1225 (Miss.1994) ). Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the recor......
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Foster v. State
...it must confine its review to what appears in the record. Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995) (citing Dillon v. State, 641 So.2d 1223, 1225 (Miss.1994) ). Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the recor......
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Foster v. State
...must confine its review to what appears in the record. Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995) (citing Dillon v. State, 641 So. 2d 1223, 1225 (Miss. 1994)). Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the recor......
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Hampton v. State
...must confine its review to what appears in the record. Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995) (citing Dillon v. State, 641 So. 2d 1223, 1225 (Miss. 1994)). Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the recor......