Thomas v. State
| Docket Number: | 2010-CP-02037-COA Linked Case(s): 2010-CP-02037-COA ; 2010-CT-02037-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-10-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Defective indictment - Habitual offender status - Section 99-39-7 - Time bar - Successive writ Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Maxwell, Russell and Fair, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 11-23-2010 Appealed from: Coahoma County Circuit Court Judge: Charles E. Webster Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED Case Number: 14-CI-10-0062 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Robert Lee Thomas |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: 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 - Defective indictment - Habitual offender status - Section 99-39-7 - Time bar - Successive writ |
| Summary of the Facts: | In 1997, Robert Thomas was convicted of two counts of aggravated assault, and the circuit judge sentenced Thomas as a habitual offender to twenty years on each count. Thomas filed his third PCR motion on May 20, 2010, over thirteen years after his conviction and sentence. The circuit judge dismissed Thomas’s third PCR motion as untimely filed and as a successive writ. Thomas appeals. |
| Summary of Opinion Analysis: | Thomas argues that the habitual-offender portion of his indictment was defective; thus, he submits his conviction and sentence are illegal and must be reversed. Specifically, Thomas states that his indictment failed to specify the dates of judgment or sentencing for his prior convictions. The record shows that Thomas never filed a direct appeal; thus, pursuant to section 99-39-5(2), he was required to file his PCR motion within three years after the time for taking the appeal. Additionally, where a petitioner's conviction and sentence were never directly appealed, section 99-39-7 requires the petitioner to first present his PCR motion to the trial court. In addition, Thomas has previously filed two motions at the trial-court level seeking leave to file an out-of-time appeal. Thus, his motion is untimely and barred as a successive writ. Also, his claims of a defective indictment and ineffective assistance of counsel lack merit. Although the indictment did not contain the dates of judgment for Thomas’s two prior convictions, the information contained in the indictment sufficiently afforded Thomas access to these dates. Thomas fails to show by a preponderance of the evidence that his counsel's performance was deficient, and that the deficiency did, in fact, prejudice his case. |
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