Sowell v. State
| Docket Number: | 2007-CP-00122-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 12-11-2007 Opinion Author: LEE, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Amendment of indictment - URCCC 7.09 - Ineffective assistance of counsel Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 12-27-2006 Appealed from: TATE COUNTY CIRCUIT COURT Judge: Andrew C. Baker Disposition: DENIED POST-CONVICTION RELIEF Case Number: CV2006-0244BT |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | KEVIN SOWELL |
KEVIN SOWELL (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS | ||
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 - Amendment of indictment - URCCC 7.09 - Ineffective assistance of counsel |
| Summary of the Facts: | Kevin Sowell pled guilty to possession of cocaine. Sowell was sentenced as an habitual offender to five years with three years of post-release supervision. Sowell filed a motion for post-conviction relief, which the court denied. Sowell appeals. |
| Summary of Opinion Analysis: | Issue 1: Amendment of indictment Sowell argues that the indictment was improperly amended to charge him as an habitual offender. URCCC 7.09 allows the amendment of indictments to charge a defendant as an habitual offender. However, any amendments to the indictment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. The trial court found that there was no evidence of surprise as Sowell had been notified of the motion to amend the indictment early in the proceedings against him to charge him as an habitual offender. Issue 2: Ineffective assistance of counsel Sowell argues that his trial counsel was ineffective for failing to object to the amendment of the indictment charging Sowell as an habitual offender. It is clear that Sowell’s attorney was able to negotiate a reduced sentence for Sowell, from a possible life sentence under section 99-19-83 to five years under section 99-18-81. Therefore, he did not perform in an ineffective manner. |
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