Flowers v. State, No. 2006-CP-01844-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Chandler, J.
• Citation: 978 So.2d 1281
• Parties: Edward D. FLOWERS, Appellant v. STATE of Mississippi, Appellee.
• Decision Date: 08 April 2008
• Docket Number: No. 2006-CP-01844-COA.

978 So.2d 1281 Edward D. FLOWERS, Appellant
v.
STATE of Mississippi, Appellee. No. 2006-CP-01844-COA. Court of Appeals of Mississippi. April 8, 2008.

[978 So.2d 1282]

Edward D. Flowers, pro se.

Office of the Attorney General by John R. Henry, attorney for appellee.

Before LEE, P.J., CHANDLER and BARNES, JJ.

CHANDLER, J., for the Court.

¶ 1. Edward D. Flowers filed a pro se motion for post-conviction relief (PCR) in the Circuit Court of Washington County. The PCR collaterally attacked Flowers's conviction for armed robbery. Flowers argued that: (1) he was denied due process because the trial court failed to advise him of his right to appeal his sentence; (2)

978 So.2d 1283

there was no factual basis for his guilty plea; (3) the indictment was defective because it failed to identify the judicial district; (4) he received ineffective assistance of counsel; and (5) he was denied due process because the State prosecuted him for the greater of the two offenses for which he was indicted. The circuit court found each of these issues to be without merit and dismissed Flowers's PCR.

¶ 2. Flowers appeals, asserting the same errors assigned in his PCR. Because the record reflects that Flowers's PCR is procedurally barred as a successive writ, we affirm the circuit court, but on different grounds.

FACTS

¶ 3. The circuit court accepted Flowers's guilty plea to armed robbery on July 29, 1999. On October 12, 1999, the circuit court sentenced Flowers to twenty years in the custody of the Mississippi Department of Corrections, with five years suspended to be served on supervised probation. The record on appeal shows that Flowers timely filed a PCR seeking relief from this conviction; relief was denied, and Flowers appealed. This Court affirmed the denial of the PCR on January 22, 2002. The record on appeal also includes a copy of portions of a second PCR concerning the armed robbery conviction that Flowers filed on September 22, 2004.

¶ 4. Flowers filed the instant PCR on November 30, 2005. In the PCR, Flowers stated, "Petitioner has not previously filed any post-conviction [claim] in any state or federal court in regards to the same claims set out on this post conviction. These claims are based upon fundamental plain errors and are excepted from any procedural bar which would otherwise be applicable." The circuit court addressed each of Flowers's issues and found them to be without merit. The circuit court summarily dismissed Flowers's PCR pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev.2007). Flowers now appeals.

STANDARD OF REVIEW

¶ 5. The circuit court may summarily dismiss a PCR "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief." Miss.Code Ann. § 99-39-11(2). On appeal, this Court will affirm the summary dismissal of a PCR if the petitioner has failed to demonstrate "a claim procedurally alive substantially showing [the] denial of a state or federal right...." Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999) (quoting Myers v. State, 583 So.2d 174, 176 (Miss.1991)).

LAW AND ANALYSIS

DID THE CIRCUIT COURT ERR BY DISMISSING FLOWERS'S PCR?

¶ 6. The record reflects that the PCR that is the subject of this appeal was Flowers's third PCR attacking his armed robbery conviction. Mississippi Code Annotated section 99-39-23(6) (Rev.2007) states that: "any order dismissing the prisoner's motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article." The statute provides exceptions to the successive pleadings bar, stating:

Excepted from this prohibition is a motion filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict's supervening insanity prior to the execution of a sentence of death.... Likewise excepted from this prohibition are those cases in which the prisoner can...