Phillips v. State
| Docket Number: | 2002-CP-00195-COA Linked Case(s): 2002-CP-00195-COA ; 2002-CT-00195-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-20-2003 Opinion Author: Thomas, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Time bar - Incarceration - Section 99-39-5(1) - Recusal of judge - Evidentiary hearing Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 07-17-2001 Appealed from: Lafayette County Circuit Court Judge: Henry L. Lackey Disposition: POST-CONVICTION COLLATERAL RELIEF - DENIED District Attorney: James M. Hood, III Case Number: L99-133 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Desmond Earl Phillips |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Time bar - Incarceration - Section 99-39-5(1) - Recusal of judge - Evidentiary hearing |
| Summary of the Facts: | Desmond Phillips pled guilty to a reduced charge of conspiracy to commit forgery. He was sentenced to five years, which was suspended, and he was placed on probation for five years. He filed a petition for post-conviction relief which was dismissed as time barred. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Time bar Phillips argues that he is not barred from bringing his motion for post-conviction relief because it is in regard to an illegal sentence and is therefore exempt from the time bar. Section 99-39-5(1) indicates that for someone to be able to take advantage of our post-conviction laws they must be currently incarcerated for a crime for which they were convicted by a Mississippi court. Because it appears Phillips was never incarcerated for the crimes for which he was convicted in 1983 and is no longer on probation for them, he is unable to challenge the sentence through the use of a motion for post-conviction relief. Therefore, the issue of the statute of limitations is moot. Issue 2: Recusal of judge Phillips argues that the judge should have recused himself because he was assigned Phillips' case by another judge, who recused himself because he was the district attorney at the time Phillips was indicted. Phillips has failed to show any showing of impropriety or the appearance of partiality. Issue 3: Evidentiary hearing Phillips argues that an order was issued which authorized an evidentiary hearing. This evidentiary hearing never occurred, because the court dismissed Phillips' motion for post-conviction relief due to the time bar. Because the court did not err in dismissing his motion as being time barred, this issue is without merit. |
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