Davidson v. State
| Docket Number: | 2001-CP-01964-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 06-03-2003 Opinion Author: McMillin, C.J. Holding: Affirmed in Part and Remanded in Part |
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| Additional Case Information: |
Topic: Post-conviction relief - Ineffective assistance of counsel - Right to speedy trial - Sentence Judge(s) Concurring: King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 12-04-2001 Appealed from: Chickasaw County Circuit Court Judge: Henry L. Lackey Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED. District Attorney: James M. Hood, III Case Number: McMillin, C.J. |
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| Party Name: | Attorney Name: | |||
| Appellant: | Johnnie M. Davidson |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE |
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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 - Ineffective assistance of counsel - Right to speedy trial - Sentence |
| Summary of the Facts: | Johnnie Davidson pled guilty to four counts of uttering a forgery and two counts of grand larceny. He filed a motion for post-conviction relief which was denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Davidson argues that his counsel was ineffective because he failed to fully investigate the facts of the case and explore the possibility that various purported witnesses could have provided evidence tending to absolve Davidson from guilt. Mere unsupported assertions contained in the motion may be disregarded by the court and the motion dismissed without the necessity of a hearing. Nowhere in his motion, by third-party affidavit or by his own sworn assertions, does Davidson reveal any details as to the full identity of these witnesses nor the particular evidence that any of them could have presented that would have tended to exonerate Davidson from the various charges that he faced. There is nothing in the record to suggest that his counsel continued to refuse to act on Davidson’s requests. Issue 2: Speedy trial The entry of Davidson’s plea of guilty acted as a waiver of any speedy trial claim, whether based on statutory or constitutional grounds. Issue 3: Sentence The indictment returned by the grand jury during the February term listed three counts of uttering a forgery. At the plea hearing, the court erroneously indicated that it was accepting Davidson’s guilty plea to four counts of uttering a forgery, and the written sentencing order carried forward the same error. Although Davidson raises the issue for the first time on appeal, a purported judgment of conviction for a felony not charged in the indictment affects fundamental rights of the defendant that may not be waived. Therefore, the judgment of sentence previously entered in this cause is set aside and the matter remanded for a new sentencing hearing at which time the court may, upon such further inquiry as the court deems appropriate, enter a judgment of sentence limited to suitable punishment for the three counts of uttering a forgery. |
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