Fleming v. State
| Docket Number: | 2010-CA-01590-COA Linked Case(s): 2010-CA-01590-COA ; 2010-CT-01590-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-13-2011 Opinion Author: Russell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Time bar - Section 99-39-5(2) - Habitual offender status - Expungement - Section 41-29-150(g) Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): Myers, J. Concur in Part, Concur in Result 1: Maxwell, J., concurs in part and in the result without separate written opinion Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 08-26-2010 Appealed from: Hinds County Circuit Court Judge: Malcolm Harrison Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: V-4838(1-2) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Terry Fleming |
SANFORD E. KNOTT |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND |
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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 - Section 99-39-5(2) - Habitual offender status - Expungement - Section 41-29-150(g) |
| Summary of the Facts: | In 1993, Terry Fleming was convicted of sale of cocaine, a felony. In 1994, Fleming was convicted of possession of cocaine, also a felony. In 2000, Fleming was convicted of two additional felonies, namely sale of cocaine and sale of marijuana. Because Fleming had two prior felonies at the time of his 2000 convictions, the circuit court sentenced him as a habitual offender. Fleming’s conviction and sentence were affirmed on appeal. In 2009, Fleming’s 1994 conviction was expunged by the circuit court. Later in 2009, Fleming filed a motion with the Mississippi Supreme Court seeking permission to proceed with a motion for post-conviction relief in the circuit court, which the Court granted. Fleming filed a motion for post-conviction relief seeking to be resentenced as a non-habitual offender due to the expungement of his 1994 felony conviction. The circuit court denied Fleming’s motion. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Time bar The State argues that Fleming’s motion for post-conviction relief was time-barred. Pursuant to section 99-39-5(2), Fleming was required to file his motion for post-conviction relief within three years after the time in which his direct appeal was ruled upon by the Supreme Court. The Supreme Court denied Fleming’s petition for writ of certiorari on October 24, 2002. Fleming did not file his motion until February 25, 2010–well over three years later. Therefore, Fleming’s motion for post-conviction relief was time-barred unless he met an exception to the three-year statute of limitations. Fleming argues that the expungement of his 1994 conviction by the circuit court in 2009 was an “intervening decision.” An “intervening decision” refers to case law - a decision of the Supreme Court of either the State of Mississippi or the United States - not an order of expungement entered by a circuit court. Thus, Fleming’s motion for post-conviction relief was time-barred. Issue 2: Habitual offender status Fleming argues that he is entitled to be resentenced as a non-habitual offender due to the expungement of his 1994 conviction in 2009. Fleming does not dispute being sentenced as a habitual offender at the time of his 2000 convictions. From a plain reading of section 41-29-150(g), it is clear that the Legislature intended to allow certain expungements to “promote the rehabilitation of persons convicted of offenses under the Uniform Controlled Substances Law.” Fleming was not rehabilitated because he was convicted of two more felonies after his 1994 conviction, both of which involved controlled substances. Indeed, Fleming’s pattern of criminal conduct in the drug arena evinced his unwillingness to become rehabilitated. Further, Fleming did not seek expungement of his 1994 conviction until after he was convicted of two more felonies and sentenced as a habitual offender. Therefore, Fleming was not entitled to be resentenced as a non-habitual offender. |
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