Turner v. State
| Docket Number: | 2002-CP-00871-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-11-2003 Opinion Author: Chandler, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Time bar - Section 99-39-5(2) - Conviction under repealed statute - Section 97-17-19 - Voluntariness of plea - Ineffective assistance of counsel Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Myers and Griffis, JJ. Concurs in Result Only: Irving, J. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 04-18-2002 Appealed from: Hinds County Circuit Court Judge: L. Breland Hilburn Disposition: POST-CONVICTION COLLATERAL RELIEF DISMISSED WITH PREJUDICE District Attorney: Eleanor Faye Peterson Case Number: 252-01-31 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Howard Turner |
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| Topic: | Post-conviction relief - Time bar - Section 99-39-5(2) - Conviction under repealed statute - Section 97-17-19 - Voluntariness of plea - Ineffective assistance of counsel |
| Summary of the Facts: | Howard Turner pled guilty to house burglary, possession of amphetamine and possession of crystal methamphetamine. He filed a motion for post-conviction relief which was denied. He then filed a writ of mandamus moving the court to rule on his post-conviction relief motion. The court dismissed his motion. Turner filed another writ of mandamus moving the court to rule on his motion. The court denied the motion as time barred, and Turner appeals. |
| Summary of Opinion Analysis: | Issue 1: Time bar Under section 99-39-5(2), a petitioner must file the PCR motion within three years of the judgment of conviction. Turner filed his original petition for post-conviction relief almost five months before the three-year statute of limitations had run. Between the time of Turner's initial post-conviction relief filing on December 13, 2000, and the court's ruling on June 20, 2001, the statute of limitations was tolled. Turner then filed within one month of the court’s ruling. Therefore, the court’s ruling that Turner's petition was time barred was erroneous. Issue 2: Conviction under repealed statute The trial court indicted and convicted Turner under repealed statute section 97-17-19 rather than under revised section 97-17-23 which combined several statutes into one section. Turner argues that the court lacked proper jurisdiction because it cited the repealed statute and that his sentence is unenforceable. Providing the incorrect statute number on an indictment or in a judgment order does not make the conviction per se void. Here, the mistake is harmless error. Issue 3: Voluntariness of plea Turner argues that he would not have pled guilty if he had known the correct statute number. A plea is voluntary if the defendant has been advised of and understands his rights, the charges against him, and the potential penalties that could be imposed. Turner acknowledged that he knew if he pled guilty he could receive a maximum sentence of twenty-five years' imprisonment and that he knew the district attorney was going to recommend sentencing him to twenty-five years' imprisonment with ten years suspended. Issue 4: Ineffective assistance of counsel Turner argues that he never would have pled guilty had his attorney advised him of the erroneous statute. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Because citing to the wrong statute number is harmless error, Turner was not prejudiced by his attorney's failure to indicate the statutory error in the indictment and sentencing order. |
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