Gray v. State


<- Return to Search Results


Docket Number: 2006-CP-01139-COA
Linked Case(s): 2006-CP-01139-SCT ; 2006-CP-01139-COA ; 2006-CT-01139-SCT
Court of Appeals: Opinion Link
Opinion Date: 10-07-2008
Opinion Author: BARNES, J.
Holding: Reversed and Remanded
Additional Case Information: Topic: Post-conviction relief - Ex post facto law - Section 47-5-138.1
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Ishee, Roberts, and Carlton, JJ.
Procedural History: PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF
Trial Court: Date of Trial Judgment: 06-16-2006
Appealed from: Lamar County Circuit Court
Judge: R. I. Prichard, III
Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED
Case Number: 2006-19P
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: VAN GRAY




 VAN GRAY (PRO SE)



  
  • Appellant #1 Brief
    		•
    Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: JANE L. MAPP  
    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.
    Topic: Post-conviction relief - Ex post facto law - Section 47-5-138.1
    Summary of the Facts: Van Gray pled guilty to crime of sale and transfer of cocaine. He was sentenced to fifteen years with seven years to serve and eight years suspended. Gray filed a motion for post-conviction relief which was denied. He appeals.
    Summary of Opinion Analysis: At the time Gray committed the crime, offenders convicted of sale or transfer of a controlled substance were eligible to be placed in trusty status and to accumulate trusty earned time pursuant to section 47-5-138.1. However, prior to the time Gray was convicted and sentenced, the statute was changed to exclude offenders convicted of sale or transfer of a controlled substance from eligibility for the earned-time allowance. The effective date of the amendment was April 28, 2004. Gray argues that he was subjected to an ex post facto violation when section 47-5-138.1 was applied to him, thereby preventing him from being eligible for earned time and a potential early release. An ex post facto law is one which creates a new offense or changes the punishment, to the detriment of the accused, after the commission of a crime. In order to show an ex post facto violation, Gray must demonstrate that application of section 47-5-138.1 creates a sufficient risk of increasing the measure of punishment attached to the covered crimes. Utilizing this test, the trial court erred in summarily dismissing Gray’s motion. However, an evidentiary hearing is necessary to determine whether the application of section 47-5-138.1 to Gray constitutes an ex post facto violation. The trial court concluded that the application of section 47-5-138.1 to Gray in no way changed the elements of the crime for which he was charged or increased the amount of punishment that he would have to face according to the crime for which he was charged; accordingly, there was no ex post facto violation. However, it is not dispositive in this case that the length of Gray’s actual sentence was not increased. The trial court also relied on the permissive language of section 47-5-138.1 in finding no ex post facto violation. However, the presence of discretion does not displace the protections of the Ex Post Facto Clause. Information that would be pertinent in the resolution of Gray’s claim would be as follows: how the trusty program works; what are the requirements for obtaining trusty status; how many prisoners similarly situated to Gray are granted trusty status, i.e., is it, in actual practice, automatic as Gray claims, or what factors contribute to the decision; when in trusty status, what are the requirements for trusty-earned time. Without this information, a court cannot determine whether Gray has been subjected to an improper ex post facto law. Moreover, because of the complexity of the issues presented in Gray’s appeal and because the resolution of the issues could potentially affect a class of prisoners, justice would be best served if Gray, who is indigent, were provided appointed counsel for the evidentiary hearing.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court