Payton v. State
| Docket Number: | 2009-KA-00332-COA Linked Case(s): 2009-KA-00332-COA ; 2009-CT-00332-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-01-2009 Opinion Author: KING, C.J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Statutory rape - Lindsey brief - Defective indictment - Amendment to indictment - Right to speedy trial - Ineffective assistance of counsel Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-08-2009 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: CONVICTED OF STATUTORY RAPE AND SENTENCED TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Jon Mark Weathers Case Number: 08-445-CR |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | GLENN PAYTON, JR. |
GLENN PAYTON, JR. (PRO SE),
GEORGE T. HOLMES |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. | ||
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: | Statutory rape - Lindsey brief - Defective indictment - Amendment to indictment - Right to speedy trial - Ineffective assistance of counsel |
| Summary of the Facts: | Glenn Payton, Jr., was convicted of statutory rape of a fifteen-year-old girl and sentenced to thirty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Lindsey brief Payton’s appellate counsel has filed a Lindsey brief, asserting that he is unable, in good faith, to present any arguable issues for appellate review. The circumstances do not warrant appellate counsel to submit supplemental briefing. Issue 2: Defective indictment Payton argues that his first indictment was defective because it charged him with statutory rape of a child under fourteen years of age when the victim was actually fifteen years of age at the time of the incident. The indictment must contain the essential elements of the crime with which the accused is charged. The State obtained a second indictment that charged Payton with the proper offense, and the first indictment was nol prossed. A defendant is not prejudiced by the return of a second indictment before the entry of nolle prosequi on his first indictment. Issue 3: Amendment to indictment Payton argues that the State improperly amended his second indictment by changing the subsection number of the charging statute. The indictment may be amended if the change is simply one of form, and the defendant will not be prejudiced by the amendment. The substance of Payton’s second indictment clearly charges Payton with the proper crime and gives him sufficient notice of the charge against him. The amendment of the indictment was simply one of form and, thus, allowable. Issue 4: Right to speedy trial Payton argues that he was deprived of his right to a speedy trial. Payton was arraigned on the second indictment on September 18, 2008. His trial commenced on January 7, 2009, which was well within the statutory period. There were valid reasons for the delay, and Payton failed to show how he suffered any prejudice by the delay. Accordingly, Payton's constitutional right to a speedy trial was not violated. Issue 5: Ineffective assistance of counsel Payton argues that his trial counsel was ineffective. There is no evidence to support a viable claim of ineffective assistance of counsel. |
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