Howard v. State
| Docket Number: | 2010-CP-00923-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-17-2011 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Time bar - Successive writ - DNA testing - Section 99-39-5(2)(a)(ii) Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers, Barnes, Ishee, Carlton and Maxwell, JJ. Concurs in Result Only: Irving, P.J. Without Separate Written Opinion Procedural History: PCR; Dismissal Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 05-07-2010 Appealed from: Webster County Circuit Court Judge: Joseph H. Loper Disposition: Motion for Post-Conviction Relief Dismissed Case Number: 2010-39-CV-L |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Joe Howard |
PRO SE |
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| Appellee: | State of Mississippi | BILLY L. GORE | ||
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 - Time bar - Successive writ - DNA testing - Section 99-39-5(2)(a)(ii) |
| Summary of the Facts: | In 1998, Joe Howard pled guilty to three counts of sexual battery. The circuit court sentenced him to twenty years on each count. Since his guilty plea, Howard has filed numerous motions for post-conviction relief, which have all been denied. Howard first filed his latest PCR motion – a motion for post-conviction DNA testing – with the Mississippi Supreme Court. In its April 16, 2010, order, the supreme court noted that the Circuit Court of Webster County had recently denied Howard’s seventh PCR motion, sanctioned Howard by taking away 180 days of his earned time, and barring Howard from filing any future PCR motions. Then, the supreme court dismissed Howard’s motion without prejudice so that he may properly file his motion with the circuit court. Thereafter, on May 3, 2010, Howard filed his PCR motion with the Circuit Court of Webster County. The court summarily dismissed Howard’s motion, and Howard appeals. |
| Summary of Opinion Analysis: | Howard argues that he did not admit guilt of the sexual batteries to the victims’ relatives. Howard pled guilty to the three charges of sexual battery in 1998; he did not file this motion for post-conviction relief until 2010. Thus, it is time-barred. In addition, Howard’s claim is successive-writ barred. Howard also challenges the circuit court’s dismissal of his PCR motion requesting post-conviction DNA testing. Howard indicated that he had filed his motion pursuant to Senate Bill 2891, which died in committee. Instead, it was Senate Bill 2709 that was successfully passed to amend section 99-39-5(2)(a)(ii), allowing petitioners to file a motion for post-conviction relief requesting DNA testing. The circuit court should have given Howard the benefit of the doubt and reviewed his PCR motion pursuant to section 99-39-5(2)(a)(ii), which was effective March 16, 2009. Howard filed his motion for post-conviction relief on May 3, 2010. In his PCR motion, Howard attacks three, separate guilty pleas. Pursuant to section 99-39-9(2), Howard may only attack one judgment per filing. Thus, the dismissal of his motion was proper on this alternative ground. In addition, it plainly appears from the face of Howard’s PCR motion and the attached exhibits that there is no existing biological evidence available for testing in this case. Because Howard has not shown that there is existing biological evidence, he has failed to meet the requirements of section 99-39-5(2)(a)(ii). |
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