Elliot v. State


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Docket Number: 2005-CP-01043-COA

Court of Appeals: Opinion Link
Opinion Date: 10-10-2006
Opinion Author: Griffis, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Ineffective assistance of counsel - Sufficiency of indictment
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Irving, Chandler, Barnes, Ishee and Roberts, JJ.
Procedural History: PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 05-05-2005
Appealed from: Oktibbeha County Circuit Court
Judge: Lee J. Howard
Disposition: MOTION FOR POST-CONVICTION COLLATERAL RELIEF DENIED
Case Number: 2005-0149-CV

  Party Name: Attorney Name:  
Appellant: Phillip Elliott




PHILLIP ELLIOTT (PRO SE)



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JOSE BENJAMIN SIMO  

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Topic: Post-conviction relief - Ineffective assistance of counsel - Sufficiency of indictment

Summary of the Facts: Phillip Elliott pled guilty, to the charges of sale of marijuana, more than an ounce less than a kilogram, and sale of cocaine. For the sale of marijuana count, Elliott was sentenced to five years, was ordered to pay a fine of $1000, and was ordered to serve five years post release supervision. On the sale of cocaine count, Elliott was sentenced to twelve years, was ordered to pay a fine of $5,000, and was ordered to serve five years post release supervision. Elliott filed a motion to vacate sentence and conviction which the court denied. He appeals.

Summary of Opinion Analysis: Issue 1: Ineffective assistance of counsel Elliott argues that his counsel had a duty to investigate the background of the police informant and that his failure to do so resulted in a violation of his due process rights. Where a party offers only his affidavit, then his ineffective assistance claim is without merit. Elliott offers only his own allegations. Issue 2: Sufficiency of indictment Elliott argues that the indictment is invalid because it failed to state the specific amount of cocaine that he was charged with selling. A valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant. In addition, there is no requirement that a specific amount of a controlled substance be found for a person to be convicted under section 42-29-139.


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