Jamison v. State

Decision Date01 February 2022
Docket Number2020-CP-01338-COA
Citation332 So.3d 892
Parties Andrew JAMISON a/k/a Andrew L. Jamison, Appellant v. STATE of Mississippi, Appellee
CourtMississippi Court of Appeals

ATTORNEY FOR APPELLANT: ANDREW JAMISON (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL

BEFORE BARNES, C.J., GREENLEE AND SMITH, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Andrew Jamison, appearing pro se, appeals the summary dismissal of his petition for post-conviction relief (PCR), in which he argued that revocation of his post-release supervision and recommitment to incarceration was improper and that issues regarding his initial conviction of attempted armed robbery mandated reversal of that conviction. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In January 2005, a DeSoto County grand jury indicted Jamison for one count of attempted armed robbery of a Holiday Inn Express in Southaven, Mississippi, and one count of possession of a stolen firearm. After a two-day trial, a jury found Jamison guilty of both counts. On January 18, 2006, the circuit court sentenced Jamison to ten years for the attempted robbery conviction, with three years to serve and seven years of post-release supervision, and five years to serve consecutively for possession of a stolen firearm, all in the custody of the Mississippi Department of Corrections (MDOC).

¶3. Jamison did not attempt to appeal his conviction until approximately ten months after trial, when on September 11, 2006, he filed in the Mississippi Supreme Court a pro se notice of appeal with a motion for an out-of-time appeal. The supreme court remanded Jamison's request to the DeSoto County Circuit Court. On November 30, 2006, the circuit court denied Jamison's request, finding that he failed to show his appeal was not timely perfected through no fault of his own. The circuit court noted Jamison failed to submit any affidavits or other evidence in support of his motion. In his motion, Jamison stated that at his sentencing hearing in January 2006 his defense counsel had informed the judge that he was going to assist Jamison in his appeal. However, a copy of this transcript is in the record, and as the circuit court noted, Jamison's counsel had made no such statement. In fact, the judge informed Jamison that he had a right to appeal and that his trial counsel was not responsible for his appeal unless they agreed to the contrary. The judge also informed Jamison that he could hire an attorney or make a proper application for a public defender, but Jamison did neither. Jamison did not appeal the denial of his request for an out-of-time appeal.1

¶4. In June 2012, while on post-release supervision, Jamison was arrested for burglary of a check-cashing business in Shelby County, Tennessee, and a firearm was found in his possession. A federal grand jury indicted Jamison for being a felon in possession of a firearm, and the burglary charge was abandoned.2 A warrant was issued for Jamison's arrest, and ultimately he was sentenced to approximately seven years for the federal crimes. In August 2013, a field officer filed an MDOC affidavit in the DeSoto County Circuit Court requesting revocation of Jamison's post-release supervision ordered in January 2006 due to the check-cashing crime.

¶5. While in federal custody, in March 2016 Jamison filed in the Mississippi Supreme Court a motion entitled "Appeal from Circuit Court Order," seeking permission to file a PCR motion in the circuit court. He claimed he had "newly discovered evidence" demonstrating his "actual innocence." The supreme court denied his motion, treating it as one for post-conviction relief and finding the motion was barred by the three-year statute of limitations.

¶6. After Jamison's release from federal custody in 2019, he was served with an outstanding DeSoto County warrant and extradited to Mississippi. On August 13, 2019, Jamison personally appeared before the circuit court, represented by counsel, for a revocation hearing. Jamison admitted to violating the terms of his post-release supervision by possessing the firearm that formed the basis for his federal charges. The circuit court thus revoked his remaining two years of post-release supervision and recommitted him in the custody of the MDOC.

¶7. In October 2019, Jamison again requested permission from the Mississippi Supreme Court to file a PCR motion. The supreme court dismissed the motion without prejudice to being pursued in the circuit court, citing Mississippi Code Annotated section 99-39-7 (Rev. 2015), which provides that PCR motions shall be filed in the circuit court unless the petitioner's conviction and sentence have been appealed to the supreme court and affirmed or dismissed. The court noted that Jamison had unsuccessfully petitioned the circuit court and supreme court for an out-of-time appeal, and thus he had never appealed his conviction or sentence. Therefore, he could pursue his PCR claims in the circuit court without seeking the supreme court's permission.

¶8. Accordingly, Jamison filed with the circuit court the PCR motion leading to this appeal, as well as various related documents, contending unlawful revocation of his post-release supervision and recommitment, ineffective assistance of counsel for failure to file a direct appeal,3 and insufficient evidence for his 2005 attempted armed-robbery conviction. On November 20, 2020, in a detailed eight-page order, the circuit court dismissed Jamison's PCR motion, finding his claims were without merit.

STANDARD OF REVIEW

¶9. In reviewing the trial court's denial or dismissal of a PCR motion, the appellate court will reverse the judgment only if the "factual findings are clearly erroneous." Berry v. State , 230 So. 3d 360, 362 (¶3) (Miss. Ct. App. 2017) (internal quotation mark omitted). Questions of law, however, are reviewed de novo. Id.

ANALYSIS

¶10. We shall begin with a discussion of the issue properly before this Court—revocation of Jamison's post-release supervision—and then discuss the issues regarding his initial conviction and denial of his request to file an out-of-time appeal.

I. Revocation of Post-Release Supervision

¶11. Jamison claims his post-release supervision was improperly revoked. He contends the August 2013 MDOC affidavit filed by a field officer in the circuit court was a "sham." The affidavit stated that Jamison violated two conditions of his post-release supervision (laws and firearms)4 : (1) on June 23, 2012, Jamison was found at Top Dollar Check Advance in Shelby County, Tennessee, with a Colt .32 revolver in his backpack; and (2) on November 29, 2012, a federal indictment formally charged Jamison with possession of a firearm by a felon, and he was taken into custody on December 4, 2012. Jamison claims that the burglary charge and the federal firearm charge were dismissed in September 2013; therefore, there was no factual basis for the revocation. Jamison also argues he was not afforded due process during his revocation proceedings because the circuit court failed to conduct a preliminary hearing within seventy-two hours of his arrest.

¶12. "Under Mississippi law, probation may be revoked upon a showing that the defendant more likely than not violated the terms of probation." Gray v. State , 269 So. 3d 331, 337 (¶21) (Miss. Ct. App. 2018) (quoting Smith v. State , 196 So. 3d 986, 996 (¶31) (Miss. Ct. App. 2015) ). However, the "mere arrest of a probationer is not a violation of probation." Brown v. State , 864 So. 2d 1058, 1060 (¶9) (Miss. Ct. App. 2004) (citing Moore v. State , 587 So. 2d 1193, 1194 (Miss. 1991) ).

¶13. At the revocation hearing, the State explained it could show Jamison was arrested in June 2012 for possession of a Colt .32 revolver in Shelby County at a check advance business and subsequently pleaded guilty to the charge. Jamison responded by admitting that he was in possession of the firearm as alleged by the State and that he understood the events that caused his post-release supervision to be revoked. Further, Jamison denied there was anything presented by the State that he would dispute or that needed clarification.

¶14. Jamison now argues that the basis of the MDOC's affidavit is invalid, and thus his post-release supervision was improperly revoked. He accurately claims the November 29, 2012 indictment and December 4, 2012 arrest were based upon the June 23, 2012 check-cashing crime, but now he contends Shelby County's burglary-of-a-building charge and the federal possession-of-a-firearm charge were both dismissed.5 Moreover, he states that he did not plead guilty to the federal indictment charge, as stated in the revocation transcript, but "was found guilty by [a] jury on the federal indictment."

¶15. Jamison is correct that the state burglary charge was abandoned. However, the revocation was not based upon the burglary charge. The revocation was based upon his being a felon in possession of a firearm. While it appears Jamison was ultimately convicted by a jury of being a felon in possession of ammunition and not a firearm, Jamison never corrected the State at the revocation hearing after being afforded every opportunity by the circuit court to respond otherwise. Further, possession of a firearm in and of itself was a violation of condition number 10 of his post-release supervision, regardless of whether he was ultimately convicted of this charge. "A probationer does not have to be convicted of a crime to be in violation of his probation but, rather, probation may be revoked when it is more likely than not that a violation has occurred." McCalpin v. State , 166 So. 3d 24, 26-27 (¶7) (Miss. 2013). Therefore, as the circuit court noted, the ultimate disposition of new criminal charges that form the basis of revocation is immaterial.

¶16. At the revocation hearing, Jamison admitted under oath to possessing a firearm on June 23, 2012, which formed the basis of his federal charges. He also admitted to understanding the terms of his post-release...

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2 cases
  • Siggers v. State
    • United States
    • Mississippi Court of Appeals
    • June 28, 2022
    ...to a preliminary hearing, a movant must still show that even in the complete absence of a such a hearing prejudice resulted. Jamison v. State , 332 So. 3d 892, 899 (¶18) (Miss. Ct. App. 2022). "If no prejudice is found, and a formal revocation hearing was held that met the minimum due-proce......
  • Adams v. State
    • United States
    • Mississippi Court of Appeals
    • May 16, 2023
    ... ... OF REVIEW ...          ¶6 ... When "reviewing the trial court's denial or ... dismissal of a PCR motion, the appellate court will reverse ... the judgment only if the 'factual findings are clearly ... erroneous.'" Jamison v. State, 332 So.3d ... 892, 897 (¶9) (Miss. Ct. App. 2022) (quoting Berry ... v. State, 230 So.3d 360, 362 (¶3) (Miss. Ct. App ... 2017)). "A circuit court may summarily dismiss a PCR ... motion 'where it plainly appears from the face of the ... motion, any annexed ... ...

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