Wheeler v. State, 2004-CP-00559-COA.
| Decision Date | 12 April 2005 |
| Docket Number | No. 2004-CP-00559-COA.,2004-CP-00559-COA. |
| Citation | 903 So.2d 756 |
| Parties | Johnnie H. WHEELER, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Johnnie H. Wheeler, appellant, pro se.
Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
Before LEE, P.J., MYERS and CHANDLER, JJ.
CHANDLER, J., for the Court.
¶ 1. Johnnie H. Wheeler appeals from the dismissal of his motion for post-conviction relief by the Circuit Court of Lincoln County. Wheeler asserts the following issues on appeal:
¶ 2. Finding no error, we affirm.
FACTS
¶ 3. On February 26, 2004, Wheeler filed a motion for post-conviction relief (PCR) challenging his 1997 conviction and sentence for sale of cocaine, citing Mississippi Code Annotated section 47-7-33 (Rev. 2004). Section 47-7-33 allows a circuit court to "suspend[] the imposition of any sentence ... and plac[e] the defendant on probation" if the defendant has no prior felony convictions. Wheeler alleged that he received an illegally suspended sentence for his cocaine sale conviction because he was a prior felon and the circuit court lacked the power to suspend his sentence under § 47-7-33.
¶ 4. The circuit court dismissed Wheeler's PCR. The court found that Wheeler had been sentenced to three years, with two years to serve and one year to be served on post-release supervision. The court held that a sentence of post-release supervision was not a suspended sentence that was impermissible under § 47-7-33 and, therefore, Wheeler's sentence was legal. The court further found that Wheeler's PCR was time-barred.
LAW AND ANALYSIS
¶ 5. The State argues that we must affirm the dismissal of Wheeler's PCR because the PCR was untimely filed and because Wheeler did not receive an illegal sentence. We agree, but first discuss an additional jurisdictional problem with Wheeler's PCR that was not addressed by circuit court. Wheeler received the conviction and sentence at issue on August 26, 1997. He received a three year sentence. Therefore, Wheeler should have completed the challenged sentence on August 26, 2000. Wheeler has not provided this Court with any evidence that he is still serving the sentence or allege that he is still serving it. Therefore, we presume that Wheeler is no longer serving the sentence.
¶ 6. Mississippi Code Annotated section 99-39-5(1) (Supp.2004) provides that "[a]ny prisoner in custody under sentence of a court of record of the State of Mississippi who claims (a) that the conviction or the sentence [is erroneous] ... may file a motion...." This language requires that a defendant desiring to attack a conviction and sentence under the post-conviction laws must actually be serving the challenged sentence at the time the PCR is filed. Phillips v. State, 856 So.2d 568, 569(¶ 4) (Miss.Ct.App.2003). Since Wheeler completed his sentence on August 26, 2000, when Wheeler filed the PCR on February 26, 2004, he was no longer in custody under the conviction and sentence. Thus, the circuit court lacked jurisdiction to consider his PCR. Torns v. State, 866 So.2d 486, 489(¶ 11) (Miss.Ct.App.2003). Since the circuit court did not have jurisdiction to address Wheeler's PCR, this Court is also without jurisdiction. Id.
¶ 7. The circuit court correctly held that Wheeler's PCR was time-barred. Because Wheeler was convicted pursuant to a guilty plea, he had three years from the entry of judgment of conviction to make a motion for post-conviction relief. Miss.Code Ann. § 99-39-5(2) (Supp.2004). Wheeler's PCR was filed outside of the three year limitations period and, therefore, it was time-barred. Wheeler argued that his claim of an illegal sentence impacted his fundamental rights and excepted his PCR from the time bar pursuant to Norwood v. State, 846 So.2d 1048, 1053(¶ 15) (Miss.2003). The lower court correctly found this argument to be without merit. A sentence of post-release supervision falls under Mississippi Code Annotated section 47-7-34, which provides for post-release supervision as an alternative to probation for prior felons. Gaston v. State, 817 So.2d 613, 619(¶ 20) (Miss.Ct.App.2002). Because Wheeler was sentenced under § 47-7-34, not § 47-7-33, Wheeler's sentence was not illegal and his fundamental...
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Wheeler v. State
...), and an appeal of the trial court's denial of his PCR motion stemming from his 1997 sale-of-cocaine conviction (Wheeler v. State, 903 So.2d 756 (Miss.Ct.App.2005) ). Currently before this Court is Wheeler's appeal of the trial court's denial of his PCR motion stemming from a separate felo......
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Wheeler v. State
...in the trial court anyway. Since the trial court was without jurisdiction, on appeal, this Court is also without jurisdiction. Wheeler v. State, 903 So. 2d 756, 758 (¶9) (Miss. Ct. App. 2005); Cortez v. State, 9 So. 3d 445, 446 (¶6) (Miss. Ct. App. 2009). "This Court must be constantly mind......
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Wheeler v. State
...1997 cocaine conviction and sentence. The circuit court denied his PCR motion, and Wheeler appealed. On appeal in Wheeler v. State , 903 So. 2d 756 (Miss. Ct. App. 2005), we affirmed the circuit court's denial, pointing out that by the time the PCR motion was filed, Wheeler's sentence shoul......
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Barrett v. State, 2012–CP–01316–COA.
... ... Id. (citing Wheeler v. State, 903 So.2d 756, 758 ( 6) (Miss.Ct.App.2005)). Accordingly, this Court has no jurisdiction to consider Barrett's motion. 10. THE JUDGMENT OF ... ...