Neal v. State


<- Return to Search Results


Docket Number: 2004-CA-00669-COA

Court of Appeals: Opinion Link
Opinion Date: 08-15-2006
Opinion Author: Southwick, J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Post-conviction relief - Defective charging documents - Double jeopardy - Voluntariness of plea
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 03-10-2004
Appealed from: Copiah County Circuit Court
Judge: Lamar Pickard
Disposition: DENIED
Case Number: 2004-0173

  Party Name: Attorney Name:  
Appellant: Pervis Dewayne Neal




LISA MISHUNE ROSS



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY  

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.

Topic: Post-conviction relief - Defective charging documents - Double jeopardy - Voluntariness of plea

Summary of the Facts: Pervis pled guilty to the charges of manslaughter and armed robbery. He filed a motion to vacate his conviction and sentence which was denied. He appeals.

Summary of Opinion Analysis: Issue 1: Defective charging documents Neal argues that due to defects in the charging documents, the circuit court was without jurisdiction and his plea was involuntary. His argument focuses on the failure of the Information to state the armed robbery element of “exhibition of a deadly weapon,” the reference in the Information to the robbery statute instead of to the statute for armed robbery, and the failure of the waiver of indictment document to refer to armed robbery. An indictment charging the essential elements of a crime must be served on a defendant in order for a court to obtain subject matter jurisdiction over the subject of a particular offense. Neal, despite his plea, could not be convicted of armed robbery. However, the invalidity of the charge of armed robbery does not affect jurisdiction over manslaughter, or the guilty plea, conviction, and sentence on that count. On remand, if Neal determines to pursue the demand to set aside the entire plea, such a motion may be filed prior to resentencing and ruled upon under the explicit authority of the trial court to determine whether good cause exists to permit the withdrawal. The Information which alleged Neal had engaged in an attempt to take the victim’s money stated that Neal had used “violence” without describing the act of violence. The explanations at the guilty plea hearing identified the violence as the display of a weapon by another perpetrator and then the shooting of the victim, but the Information did not charge that overt act. Accordingly, an attempted simple robbery was not properly charged. However, if not for the presence of the word “attempt” in the Information, there would have been a sufficient charge of simple robbery. At times, words in indictments may properly be labeled as surplusage. Since the crime of robbery was adequately proven at trial, the indictment’s reference to an attempt to rob was surplusage. Since Neal’s defense was not affected by the word “attempt,” that word may be considered surplusage. By deleting “attempt,” the Information validly charged Neal with simple robbery. Having been so charged, he could be convicted either of simple robbery or of attempted robbery. Thus, the case is remanded for sentencing for that crime. Issue 2: Double jeopardy Neal seeks to argue his double jeopardy rights in the context of his having been convicted of capital murder and robbery, in which the robbery was a constituent element of the murder. However, that did not occur. Issue 3: Voluntariness of plea Neal argues that he was not informed of the elements of the crimes. Regarding the crime of manslaughter, the elements were listed in the waiver of indictment and in the plea petition that Neal signed. As to the crime of robbery, in the waiver of indictment Neal admitted to an “attempt to take, steal and carry away United States currency, the personal property of the said W. Q. Bradley.” Neal represented to the court that this Information was true. Thus, Neal was informed of the elements of both offenses.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court