Tucker v. State
| Docket Number: | 2011-CP-00790-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 07-24-2012 Opinion Author: Paul S. Funderburk Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Time bar - Suspension of sentence - Section 47-7-33(1) - Section 47-7-34 - Post-release supervision Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Carlton, Maxwell, Russell and Fair, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 08-11-2011 Appealed from: Lee County Circuit Court Judge: Paul Funderburk Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED Case Number: CV10-005-R-L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Jeff Wayne Tucker a/k/a Jeff W. Tucker a/k/a Jeff Tucker |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS | ||
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 - Suspension of sentence - Section 47-7-33(1) - Section 47-7-34 - Post-release supervision |
| Summary of the Facts: | Jeff Tucker pled guilty to sexual battery in 1997. He was sentenced to twenty years, with sixteen years suspended. Approximately thirteen years later, Tucker filed a motion for post-conviction relief and sought to vacate his guilty plea and sentence on the basis that the circuit court had illegally suspended a portion of his sentence. The circuit court found that Tucker’s PCR motion was untimely and dismissed it. Tucker appeals. |
| Summary of Opinion Analysis: | Tucker pled guilty to sexual battery on November 10, 1997. He had three years from the circuit court’s entry of the judgment of conviction to file a PCR motion. Therefore, Tucker had until November 10, 2000, to file a PCR motion attacking his 1997 sexual-battery conviction. His October 4, 2010 PCR motion was approximately ten years too late. The three-year statute of limitations may be waived when a fundamental constitutional right is implicated. Tucker has not demonstrated that he suffered any prejudice based on a violation of his fundamental rights. In addition, there is no merit to Tucker’s underlying claim. Tucker argues that the circuit court had no authority to suspend sixteen years of his twenty-year sentence because he had previously been convicted of a felony. To support his argument, Tucker cites section 47-7-33(1). However, section 47-7-33(1) prohibits a sentencing court from suspending a sentence and placing a defendant on probation if that defendant “has been convicted of a felony on a previous occasion.” Although the circuit court suspended a portion of Tucker’s 1997 sentence for sexual battery, the circuit court did not place Tucker on probation. He sentenced Tucker to twenty years with sixteen years suspended followed by five years of post-release supervision. Section 47-7-34 governs post-release supervision and does not prohibit a sentencing court from suspending a portion of a sentence and including a term of post-release supervision when a defendant has been previously convicted of a felony. |
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