Summerville v. State, 93-KP-01011-SCT
| Decision Date | 11 January 1996 |
| Docket Number | No. 93-KP-01011-SCT,93-KP-01011-SCT |
| Parties | R.L. SUMMERVILLE v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
R.L. Summerville, Rosedale, MS; pro se.
Michael C. Moore, Attorney General, Jackson, MS; Jeffrey A. Klingfuss, Sp. Ass't Attorney General, Jackson, MS; for appellee.
Before PRATHER, P.J., and PITTMAN and McRAE, JJ.
R.L. Summerville was convicted for sale of cocaine and conspiracy in the Leflore County Circuit Court in January 1991. Summerville was sentenced to thirty years on the sale count and five years on the conspiracy count, to run concurrently. Summerville was represented at trial by Fredrick B. Clark. Clark never perfected an appeal on behalf of Summerville.
On November 26, 1991, Summerville filed his Petition for an Out-of-Time Appeal with the circuit court. Summerville alleged that he advised Fredrick Clark that he wanted to appeal his conviction. He further alleged that Clark subsequently came to visit him in jail and advised him to sign certain papers to have additional pending charges dismissed. Summerville alleges that he reads at the fourth grade level, is borderline retarded, and that he never knowingly waived his right to an appeal.
The circuit court ordered that Fredrick Clark file an answer to Summerville's petition. Clark's response stated that he had advised Summerville that the district attorney would dismiss other pending charges against Summerville if Summerville would agree not to appeal his conviction. Clark stated that Summerville agreed to forgo his appeal. Clark attached an affidavit, dated April 3, 1991, and signed by R.L. Summerville, which stated: "I am not going to appeal my January 1991, conviction to the Mississippi Supreme Court." Declining to hold an evidentiary hearing, the circuit court found that Summerville's petition for out-of-time appeal should be denied.
Summerville assigns three issues for review by this Court, but all raise essentially the same argument, that the circuit court erred in denying Summerville's petition without holding an evidentiary hearing. In Wright v. State, 577 So.2d 387 (Miss.1991), this Court held that where the affidavits of petitioner and attorney were contradictory as to whether an appeal had been requested and whether the petitioner had been advised of his right to appeal, and where the petitioner had met the pleading requirements of the Mississippi Uniform Post-Conviction Collateral Relief Act, the petitioner...
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Osborn v. State, 95-KA-00048-SCT
...of an out-of-time appeal. Knowledge that an appeal exists is not the same as knowledge that there is a right to appeal. Summerville v. State, 667 So.2d 14, 15 (Miss.1996); Wright, 577 So.2d at 390. In those cases where there has been some question as to whether the defendant was advised of ......
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...right to an appeal, the supreme court has held that the petitioner is entitled to an evidentiary hearing on the matter. Summerville v. State, 667 So.2d 14, 15 (Miss.1996); see also Wright v. State, 577 So.2d 387 (Miss.1991). The court in Wright stated that "[i]n order for a contested fact t......
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Pulliam v. State, 2018-CA-00380-COA
...evidentiary hearing as to whether he had been advised of his right to appeal and whether he requested an appeal. See Summerville v. State , 667 So. 2d 14, 15 (Miss. 1996) ; see also Wright v. State , 577 So. 2d 387 (Miss. 1991). And this Court has held that an evidentiary hearing is also ne......