Garlotte v. State, No. 2003-CP-01559-COA.
| Decision Date | 19 April 2005 |
| Docket Number | No. 2003-CP-01559-COA. |
| Citation | 915 So.2d 460 |
| Parties | Harvey F. GARLOTTE, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Supreme Court |
Harvey F. Garlotte (pro se), attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
Before LEE, P.J., MYERS and CHANDLER, JJ.
CHANDLER, J., for the Court:
¶ 1. On September 16, 1985, Harvey F. Garlotte pled guilty to two counts of murder in the Circuit Court of Marion County and one count of possession of marijuana with intent to distribute in the Circuit Court of Lamar County. On June 19, 2003, Garlotte filed motions for post-conviction relief (PCRs) on each of the convictions. In the PCRs, Garlotte alleged that his guilty pleas were involuntary because, in 1996, the district attorney breached the plea agreement by sending a letter to the Parole Board recommending that Garlotte never be released on parole. The Circuit Court of Marion County dismissed Garlotte's PCRs as successive writs.
¶ 2. Garlotte assigns seven errors on appeal: (1) whether his PCRs were barred as successive pleadings; (2) whether there was a plea agreement between the State and Garlotte; (3) whether the State violated its plea agreement with Garlotte; (4) whether the district attorney's actions were retaliatory, vindictive, and violative of Garlotte's rights of access to the courts and equal protection; (5) whether the actions of the district attorney and others violated Garlotte's right to substantive due process; (6) whether the plea agreement was void as against public policy; (7) whether Garlotte's convictions should be vacated and the charges dismissed with prejudice.
¶ 3. Finding no error, we affirm the Circuit Court of Marion County's dismissal of Garlotte's PCRs as successive writs.
FACTS
¶ 4. Garlotte pled guilty to two counts of murder and one count of possession of marijuana with intent to distribute. In his PCRs, Garlotte alleged that he pled guilty to the three charges in response to the district attorney's promise to recommend that the court sentence him to two life sentences to be served concurrently for the murder charges and three years to be served consecutively for the marijuana charges. He alleged that he agreed to plead guilty because the recommended penalty of concurrent life sentences would have given him the prospect of parole eligibility after ten years and nine months, rather than after twenty years and nine months as would have been the case if the life sentences had been run consecutively.
¶ 5. The circuit court accepted Garlotte's pleas at a single hearing. During the plea colloquy, the district attorney indeed recommended that Garlotte serve concurrent life sentences for the murder charges and a consecutive three year sentence for the marijuana charge. The court sentenced Garlotte according to the State's recommendation. On November 3, 1986, Garlotte filed a PCR concerning the marijuana charge. The dismissal of that PCR was affirmed by the Mississippi Supreme Court. Garlotte v. State, 530 So.2d 693 (Miss.1988). Garlotte also filed PCRs relating to the murder charges which were denied after an evidentiary hearing. The supreme court affirmed the denial of relief without comment. Garlotte v. State, 597 So.2d 641 (Miss.1992).
¶ 6. Garlotte filed his current PCRs on June 19, 2003. Those PCRs indicated that, on February 5, 2002, Garlotte requested that the district attorney's office send him copies of any and all communications from that office to the Mississippi State Parole Board concerning the possibility of Garlotte's parole release. In response, the district attorney's office mailed Garlotte a letter that had been sent from Richard L. Douglass, the district attorney who prosecuted Garlotte's case, to the Mississippi Parole Board. In the letter, dated January 9, 1996, District Attorney Douglass opined that Garlotte should never be released. Garlotte attached copies of these letters to his PCRs. He also attached a copied letter from the Victim Assistance Coordinator for Marion County to the Mississippi Department of Corrections attempting, on behalf of the victims' families, to ascertain the date of Garlotte's parole eligibility.
¶ 7. Garlotte argued that his guilty pleas were induced by a promise that the district attorney would recommend concurrent sentences. He argued that, because the district attorney agreed to recommend sentences that included an earlier date for parole consideration, the district attorney breached the plea agreement by sending a letter that would have the effect of causing or contributing to the denial of his parole release. The circuit court dismissed Garlotte's PCRs as successive pleadings. Miss.Code Ann. § 99-39-23(6) (Supp.2004). The court found that, notwithstanding the successive pleadings bar, Garlotte's argument was without merit because the district attorney had agreed only to recommend a certain sentence in exchange for the pleas, and there was no record evidence that the district attorney's office had agreed not to oppose Garlotte's parole release.
LAW AND ANALYSIS
¶ 8. We review Garlotte's issues together, but first turn to the procedural posture of this appeal. Garlotte's notice of appeal pertained to the June 19, 2003 judgment of the Marion County Circuit Court. That judgment referenced all three of Garlotte's PCRs, but was somewhat ambiguous about whether it operated to dismiss one or all of the PCRs. We observe that a jurisdictional problem is raised by the dismissal by the Marion County Circuit Court of a PCR concerning a Lamar County conviction. This is because the court in which the conviction was obtained has exclusive jurisdiction of a PCR from that conviction. Miss.Code Ann. § 99-39-7 (Supp.2004); Stanley v. Turner, 846 So.2d 279, 281 (¶ 7) (Miss.Ct.App.2002).
¶ 9. On November 7, 2003, Garlotte filed a petition for a writ of mandamus in the supreme court. Garlotte contended that the June 19 judgment had adjudicated only one of his PCRs and that two PCRs remained pending in the circuit courts of Marion and Lamar counties. He sought to compel the circuit courts to rule on both PCRs. On December 18, 2003, the supreme court denied Garlotte's petition, finding that the June 19 order had "addressed [all three of] the motions...." On January 27, 2004, the supreme court denied Garlotte's motion for reconsideration, stating that the court had denied Garlotte's petition for a writ of mandamus "because the trial court's order encompassed all three of Garlotte's post-conviction relief motions." Since the supreme court has determined that the June 19 order adjudicated all three of Garlotte's PCRs, we proceed to review the dismissal of Garlotte's three PCRs as successive.
¶ 10. The State contends that Garlotte's PCRs were barred as successive and also barred by the statutory three year limitations period. See Miss.Code Ann. § 99-39-23(6) (successive pleadings bar); § 99-39-5(2) (Supp.2004) (time bar). The State is correct. Garlotte has already collaterally attacked all three of his convictions on post-conviction relief. Mississippi Code Annotated section 99-39-23(6) provides that "any order dismissing the prisoner's motion or otherwise denying relief under this article is a final judgment and... shall be a bar to a second or successive motion under this article." Therefore, Garlotte's PCRs were barred as successive writs. And, Garlotte's PCRs were time barred because they were filed over three years after the entry of the judgment of conviction. Miss.Code Ann. § 99-39-5(2) (Supp.2004).
¶ 11. Garlotte maintains that his arguments are excepted from the procedural bars because they rest upon newly discovered evidence in the form of the 1996 letter from District Attorney Douglass. Garlotte contends that, because he did not know at the time of his guilty plea that the district attorney would later act in breach of the plea agreement, the letter demonstrating a breach was newly discovered evidence under Mississippi Code Annotated section 99-39-23(6) (Supp.2004).
¶ 12. Mississippi Code Annotated section 99-39-23(6) (Supp.2004) lists several exceptional situations in which successive pleadings will be allowed:
[e]xcepted 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 demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. 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.
Mississippi Code Annotated section 99-39-23(2) (Supp.2004) also contains an exception from the time bar for newly discovered evidence.
¶ 13. "Newly discovered evidence" is evidence "which could not have been discovered by the exercise of due diligence at the time of trial, as well as being almost certainly conclusive that it would cause a different result." Frost v. State, 781 So.2d 155, 158 (¶ 7) (Miss.Ct. App.2000). A threshold problem with Garlotte's claim that the district attorney's letter is newly discovered evidence is that the letter did not exist at the time of Garlotte's guilty pleas. We observe that, in cases controlled by the Federal Rules of Civil Procedure, "newly discovered evidence" sufficient for a new...
To continue reading
Request your trial
- Mangum v. Mississippi Parole Bd.
- Russell v. State
-
Jackson v. State
...cases: Gaston v. State, 922 So.2d 841 (Miss.Ct.App.2006); Sykes v. State, 919 So.2d 1064 (Miss.Ct. App.2005); Garlotte v. State, 915 So.2d 460 (Miss.Ct.App.2005); Freshwater v. State, 914 So.2d 328 (Miss.Ct.App.2005); McGriggs v. State, 877 So.2d 447 (Miss. Ct.App.2003); Donnelly v. State, ......
-
Chancy v. State, 2004-CT-02036-SCT.
...cases: Gaston v. State, 922 So.2d 841 (Miss.Ct.App.2006); Sykes v. State, 919 So.2d 1064 (Miss.Ct. App.2005); Garlotte v. State, 915 So.2d 460 (Miss.Ct.App.2005); Freshwater v. State, 914 So.2d 328 (Miss.Ct.App.2005); McGriggs v. State, 877 So.2d 447 (Miss.Ct. App.2003); Donnelly v. State, ......