Carr v. State
| Docket Number: | 2002-CA-01557-COA Linked Case(s): 2002-CT-01557-SCT ; 2002-CT-01557-SCT ; 2002-CA-01557-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-28-2003 Opinion Author: Bridges, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Authority to reduce sentence - Opportunity to be heard - Statute of limitations - Section 99-39-21 Judge(s) Concurring: King and Southwick, P.JJ., Thomas, Lee, Myers, Chandler and Griffis, JJ. Concurs in Result Only: McMillin, C.J., and Irving, J. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 08-14-2002 Appealed from: Tippah County Circuit Court Judge: Andrew K. Howorth Disposition: DENIAL OF POST-CONVICTION RELIEF District Attorney: James H. Hood, III Case Number: TK98-062 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Mark Carr |
B. SEAN AKINS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS |
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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 - Authority to reduce sentence - Opportunity to be heard - Statute of limitations - Section 99-39-21 |
| Summary of the Facts: | Mark Carr pled guilty to sale of a controlled substance and was sentenced to fifteen years with five years suspended. Carr filed a motion for reconsideration or in the alternative post-conviction relief which was denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Authority to reduce sentence Carr’s sentencing was deferred for the purpose of conducting a pre-sentence investigation allowing Carr to put on proof. This hearing was held months later but provided the appellant’s attorney with only one day’s notice. Carr’s motion was heard by a succeeding judge who did not believe Carr had a meaningful opportunity to be heard at his sentencing but thought since Carr’s constitutional rights were not violated, as a judge, he lacked the authority to re-sentence. A reduction or reconsideration of a sentence by a judge must occur prior to the expiration of the sentencing term. Carr’s motion to reconsider was not with the clerk until after the court term in which Carr was sentenced ended. Therefore, the judge did not have authority to hear the motion for re-sentencing. In addition, the sentence Carr received was within the statutory bounds and would not be considered an abuse of the judge’s discretion. Issue 2: Opportunity to be heard Carr argues his due process rights were violated when the court limited his right to be heard in the sentencing hearing. Section 99-39-21 makes waiveable any constitutional claims determinable at trial or by direct appeal if not properly appealed within the statute of limitations and can only be overcome by a showing of cause and actual prejudice. Carr did not meet this burden and therefore, the procedural time bar of raising this issue on appeal has lapsed. |
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