Nick v. State
| Docket Number: | 2009-CP-00339-COA Linked Case(s): 2009-CP-00339-COA ; 2009-CT-00339-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-23-2010 Opinion Author: Myers, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Right to speedy trial - Ineffective assistance of counsel - Evidentiary hearing Judge(s) Concurring: King, C.J., Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: PCR; Dismissal Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 04-17-2009 Appealed from: Hinds County Circuit Court Judge: W.Swan Yerger Disposition: DISMISSED MOTION FOR POSTCONVICTION RELIEF Case Number: 05-0-917M.T.P. |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Anthony Nick |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER | ||
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 - Right to speedy trial - Ineffective assistance of counsel - Evidentiary hearing |
| Summary of the Facts: | Anthony Nick pled guilty to aggravated assault and was sentenced to twenty years’ imprisonment. Nick filed a motion for post-conviction relief which was dismissed. Nick appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to speedy trial Nick argues that he was denied his right to a speedy trial and that the information for aggravated assault, which he pled guilty to, was filed outside the statute of limitations. A valid guilty plea waives all non-jurisdictional rights or defects which are incident to the trial. This includes both the right to a speedy trial and the statute of limitations in a criminal case. Nick also argues, correctly, that an illegal sentence could not have been similarly waived by his guilty plea. But he simply asserts that his sentence was illegal, without any supporting arguments. Nothing in the record suggesting that Nick’s sentence was illegal. Issue 2: Ineffective assistance of counsel Nick argues that he received constitutionally ineffective assistance of counsel. Nick first argues that his attorneys should have more thoroughly investigated his case and presented mitigating evidence at his sentencing. However, he offers no supporting evidence and no further elaboration as to what mitigating evidence should have been offered. Where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit. Nick next argues that his trial counsel should have advised him that he would be sentenced as a habitual offender. However, it is clear from the record that Nick was not, in fact, sentenced as a habitual offender. Nick’s final argument under this issue is largely a rehashing of his prior arguments concerning the statute of limitations. Nick waived his right to a speedy trial. Also, Nick pled guilty to aggravated assault, which carries a lesser sentence than rape, for which he was originally charged. Issue 3: Evidentiary hearing Nick argues that the circuit court erred in dismissing his PCR motion without an evidentiary hearing. To be entitled to an evidentiary hearing, a petitioner must demonstrate, by affidavit or otherwise, that there are unresolved issues of fact that, if concluded favorably to the petitioner, would warrant relief. Nick’s argument on this issue is largely a rehashing of the arguments that have been previously addressed and rejected. |
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