Davis v. State


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Docket Number: 2007-CP-00578-COA

Court of Appeals: Opinion Link
Opinion Date: 05-25-2010
Opinion Author: Barnes, J.
Holding: The judgment of the Circuit Court of Tunica County denying the petition for post-conviction relief is affirmed.

Additional Case Information: Topic: Post-conviction relief - Timeliness of appeal - M.R.A.P. 4 - M.R.A.P. 2(c) - Waiver of appeal
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts and Maxwell, JJ.
Procedural History: PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 01-10-2007
Appealed from: TUNICA COUNTY CIRCUIT COURT
Judge: Kenneth L. Thomas
Disposition: DENIED PETITION FOR OUT-OF-TIME APPEAL
Case Number: 2004-0059

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: George Davis, Jr.




PRO SE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS  

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Topic: Post-conviction relief - Timeliness of appeal - M.R.A.P. 4 - M.R.A.P. 2(c) - Waiver of appeal

Summary of the Facts: George Davis, Jr. was convicted of armed robbery and sentenced to fifteen years, with three years suspended and three years of post-release supervision. Davis filed a notarized “Affidavit” which both he and his attorney had signed. The affidavit stated that, after conferring with his court-appointed trial attorney and “being advised of all his constitutional rights,” Davis did not desire to appeal his conviction and waived this right. In the affidavit, Davis also waived the right to have his trial attorney file post-trial motions for a judgment notwithstanding the verdict or a new trial. Several months later, Davis filed a pro se “Petition For Out-of-Time Direct Appeal.” Davis contended he was manipulated by his trial counsel into signing the waiver of his right to appeal; thus, he was denied his right to due process and his right to effective assistance of counsel. The court denied his petition, and Davis appeals.

Summary of Opinion Analysis: Issue 1: Timeliness of appeal Davis argues his current appeal is a direct appeal of his conviction and sentence and not one for post-conviction relief. Pursuant to M.R.A.P. 4(a), appeals to the Mississippi Supreme Court are made by filing a notice of appeal with the clerk of the trial court within thirty days of the entry of judgment or order appealed from. Davis was sentenced in an order dated June 27, 2005, and a judgment was entered on July 12, 2005. For a timely direct appeal, Davis would have had to file his notice of appeal by August 11, 2005, at the latest, but he did not. His petition for an out-of-time appeal was filed in March 2006. Two circumstances in which the trial court can grant an extension of time are found in M.R.A.P. 4(g) and 4(h), neither of which apply here. Davis filed his petition well outside of the time frames allowed. M.R.A.P. 2(c) allows the appellate court to suspend the thirty-day requirement of Rule 4(a) in criminal cases for good cause shown and in the interest of expediting decision. Davis has failed to provide any evidence of good cause. Because Davis waived his appeal, and then apparently changed his mind well after the thirty-day deadline, his failure to perfect his direct appeal cannot be said to be through no fault of his own. Davis’s petition for filing an out-of-time appeal is considered to be a motion for post-conviction relief. Whether a defendant is entitled to an out-of-time appeal is a ground for post-conviction relief. In the interest of justice, because Davis may not have had notice of the entry of the order denying his petition, and his notice of appeal was filed within thirty days of the date he certainly received notice of the denial, the thirty-day filing requirement for Davis’s notice of appeal of the circuit court’s denial of his petition for out-of-time appeal is suspended pursuant to M.R.A.P. 2(c). Issue 2: Waiver of appeal An accused may voluntarily waive his or her right of appeal, but any waiver of appeal must be informed and voluntary. Davis’s waiver was prepared with the assistance of his trial counsel. It was properly executed by both Davis and his counsel, notarized, and filed. There is no evidence in the record to show the waiver was in any way invalid. Davis could have revoked the waiver and perfected his appeal at any time prior to thirty days from the entry of judgment, pursuant to Rule 4(a), but there is no evidence that he made such an attempt. Instead, he waited until over eight months later to claim his waiver was invalid. Davis’s petition for an out-of-time direct appeal does not provide any affidavits of proposed witnesses to prove facts that would be outside of his knowledge about the wavier of his right. Davis argues that his counsel was ineffective for advising him erroneously about how much time he would be required to serve, parole eligibility, and the ability to accumulate good time toward early release. Davis also argues that his counsel failed to advise him of his right to appeal and failed to timely perfect his appeal. Davis has not alleged with specificity and detail that his counsel was deficient. Moreover, Davis did not present sufficient proof to warrant an evidentiary hearing. The record indicates Davis was not provided any incorrect information about his sentence by either the circuit court or his counsel. With regard to Davis’s claim that he was erroneously advised by his counsel on earned time, Davis offers no proof.


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