Leavitt v. State


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Docket Number: 2006-CP-01654-COA
Linked Case(s): 2006-CP-01654-SCT ; 2006-CP-01654-COA

Court of Appeals: Opinion Link
Opinion Date: 01-29-2008
Opinion Author: ROBERTS, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Post-conviction relief - Time bar - Section 99-39-5 (2) - Ineffective assistance of counsel - URCCC 8.04(B)(3) - Factual basis for plea - URCCC 8.04(A)(3)
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ.
Procedural History: Dismissal; PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 08-17-2006
Appealed from: MARSHALL COUNTY CIRCUIT COURT
Judge: Andrew K. Howorth
Disposition: DISMISSED MOTION FOR POSTCONVICTION RELIEF
Case Number: M2006-185

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: SCOTT LEAVITT




SCOTT LEAVITT (PRO SE)



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY  

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Topic: Post-conviction relief - Time bar - Section 99-39-5 (2) - Ineffective assistance of counsel - URCCC 8.04(B)(3) - Factual basis for plea - URCCC 8.04(A)(3)

Summary of the Facts: Scott Leavitt pled guilty to four counts of child exploitation. He filed a motion for post-conviction relief which was denied. He appeals.

Summary of Opinion Analysis: Issue 1: Time bar Leavitt argues that the trial court erred in denying his motion as time-barred. Section 99-39-5 (2) provides that a motion for relief under this article shall be made in the case of a guilty plea, within three years after entry of the judgment of conviction. Leavitt pled guilty on May 19, 2003, and an order accepting his plea was filed the same day. Therefore, he had until May 19, 2006, to timely file a motion requesting relief. Leavitt filed his motion on May 8, 2006. Accordingly, his motion was timely filed, and the trial court erred in holding otherwise. Issue 2: Ineffective assistance of counsel Leavitt argues several instances of ineffective assistance of counsel based upon his hired attorney’s actions and inactions throughout the proceedings in the circuit court. A majority of Leavitt’s claims of ineffective assistance are totally devoid of merit. His argument that his attorney rendered ineffective assistance of counsel by not informing Leavitt of a plea bargain offered by the State is remanded to the trial court for further consideration after an evidentiary hearing is conducted. Pursuant to URCCC 8.04(B)(3), it is the duty of a defense attorney not to conclude any plea bargaining on behalf of the defendant without the defendant’s full and complete consent. Issue 3: Factual basis for plea Leavitt argues that the trial court accepted his guilty plea without first advising him of the nature of the charges against him or establishing a factual basis for the plea. URCCC 8.04(A)(3) provides that before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. The record must contain an evidentiary foundation which is sufficiently specific to allow the court to determine that the defendant's conduct was within the ambit of that defined as criminal. Such is lacking in the record before the Court. This claim should also be examined by the trial court on remand.


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