Avery v. State
| Docket Number: | 2011-CP-00664-COA Linked Case(s): 2011-CP-00664-COA ; 2011-CT-00664-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-15-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Illegal sentence - Time bar - Double jeopardy Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Maxwell, Russell and Fair, JJ. Non Participating Judge(s): Roberts, J. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 04-18-2011 Appealed from: Lauderdale County Circuit Court Judge: Lester F. Williamson Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED Case Number: 11-CV-041(W) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | William Antonio Avery |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: STEPHANIE BRELAND WOOD | ||
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 - Illegal sentence - Time bar - Double jeopardy |
| Summary of the Facts: | William Avery pled guilty to possession of methamphetamine. He was sentenced to fifteen years, with five years to serve, ten years suspended, and five years of reporting probation under the supervision of the MDOC. Avery was released on parole in 2004. His suspended sentence and probation were later revoked by the trial court in 2010, and he was ordered to serve the remainder of his ten-year sentence. Avery filed a motion for post-conviction relief which the court dismissed as time barred. He appeals. |
| Summary of Opinion Analysis: | Avery signed a petition to enter a guilty plea to possession of methamphetamine on May 20, 2003. The trial court entered a sentencing order on June 20, 2003. Avery filed his PCR motion on March 31, 2011 – well past the three-year statute of limitations. Avery, however, argues that the filing of his PCR motion is excepted from the time bar because his fundamental constitutional rights are at stake. Specifically, Avery claims the trial court imposed a sentence exceeding that set forth in his guilty-plea petition in violation of his constitutional protection against double jeopardy. Thus, Avery contends that when his parole was revoked in 2010, he was subjected to an illegal sentence. There is no merit to Avery’s claim that he received an illegal sentence violating his double-jeopardy rights. Avery was released on parole in 2004. He was discharged by MDOC after his initial five-year term on May 1, 2008. Avery’s suspended sentence and probation were later revoked by the trial court in 2010, and Avery was ordered to serve the remainder of the ten-year sentence previously imposed. Clearly, Avery was not prosecuted for the same offense after acquittal; he was not subjected to a second prosecution for the same offense after conviction; and he did not receive multiple punishments for the same offense. Further, the trial judge acted within his discretion in reinstating Avery’s ten-year sentence that was previously suspended. Moreover, Avery’s signed guilty-plea petition reflects that Avery understood that the trial court was not bound by the State’s sentencing recommendations. |
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