Diggs v. State

46 So. 3d 361, 2010 Miss. App. LEXIS 55, 2010 WL 432312
CourtCourt of Appeals of Mississippi
DecidedFebruary 9, 2010
DocketNo. 2008-CP-01546-COA
StatusPublished
Cited by6 cases

This text of 46 So. 3d 361 (Diggs v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diggs v. State, 46 So. 3d 361, 2010 Miss. App. LEXIS 55, 2010 WL 432312 (Mich. Ct. App. 2010).

Opinion

KING, C.J.,

for the Court:

¶ 1. Timothy Wayne Diggs filed a motion for post-conviction relief in the Circuit Court of Lawrence County. The trial court dismissed the motion, and Diggs now appeals. On appeal, Diggs claims that:

I. His constitutional rights were violated because: (a) he was sentenced to a mandatory sentence, without the benefit of earned time; (b) he was not indicted for the offense; and (c) there was no firearm or deadly weapon introduced into evidence to substantiate the charge of armed robbery;
II. He was denied due process of law because the trial court failed to advise him that he could seek a direct appeal of his sentence;
III. He received ineffective assistance of counsel; and
IV. A sufficient factual basis was not established for his guilty plea.

We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Diggs executed a waiver of indictment and consented to be charged by information for the crime of armed robbery. The information alleged that:

On or about February 9, 2005, in Lawrence County, Mississippi, Timothy Wayne Diggs did feloniously take the personal property of Valley Quick Stop from its clerk, Wanda Renfroe, by putting her in fear of immediate injury to her person by the exhibition of a handgun, a deadly weapon, contrary to and in violation of [Mississippi Code Annotated section] 97-3-79, as amended, against the peace and dignity of the State of Mississippi.

On April 21, 2005, Diggs entered his guilty plea to the charge in the Circuit Court of Lawrence County. Satisfied that Diggs was making an intelligent and voluntary guilty plea, the trial court accepted his plea.

¶ 3. Diggs’s sentencing hearing was held on May 13, 2005. During the hearing, Diggs apologized for his involvement in the crime. However, he informed the trial court that he was not the person who [364]*364actually went into the convenience store with the gun. Diggs claimed that he never left the car and remained outside the entire time. The trial court agreed to take Diggs’s claims into consideration when sentencing him. Subsequently, on June 27, 2005, the trial court entered a judgment of conviction and sentence, finding Diggs guilty of armed robbery and sentencing Diggs to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years suspended, ten years to serve, and five years of post-release supervision.

¶4. On May 9, 2008, Diggs filed his motion for post-conviction relief. The trial court found that Diggs’s motion was deficient on its face and without merit, and the trial court summarily dismissed the motion. Aggrieved, Diggs timely filed his notice of appeal.

ANALYSIS

¶ 5. The trial court may dismiss a motion for post-conviction relief without an evidentiary hearing where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” Miss.Code Ann. § 99-39-11(2) (Supp.2009). This Court will not disturb the trial court’s dismissal of a motion for post-conviction relief absent a finding that it was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, issues of law are reviewed de novo. Id.

I. Diggs’s Constitutional Rights A. Earned Time

¶ 6. Diggs contends that his constitutional rights were violated because he was sentenced to serve a mandatory ten-year sentence without the benefit of earned time. Mississippi Code Annotated section 47-5-139 (Rev.2004) precludes some inmates from eligibility for earned-time credit. In pertinent part, section 47-5-139(l)(e) provides that an inmate is not eligible for earned-time credit when “[t]he inmate has not served the mandatory time required for parole eligibility for a conviction of robbery or attempted robbery with a deadly weapon.”

¶ 7. Mississippi Code Annotated section 47—7—3(1) (d) (ii) (Supp.2009) dictates an inmate’s parole eligibility and provides that any inmate convicted of armed robbery on or after October 1, 1994, shall not be eligible for parole. Thus, it logically follows that “since an offender serving a sentence for an armed robbery committed on or after October 1, 1994[,] can never serve the mandatory time required for parole eligibility, he is not eligible to accrue earned[-]time credits.” Sykes v. Epps, 963 So.2d 31, 33 (¶ 7) (Miss.Ct.App.2007). Based on the foregoing, it is clear that Diggs is not entitled to accumulate earned-time credit. Thus, we find that this argument is without merit.

B. Indictment

¶ 8. Diggs argues that his guilty plea was not valid because he was not indicted for the offense of armed robbery. Diggs further contends that his guilty plea is invalid because the information did not notify him that the first ten years of his sentence was mandatory, and the information allegedly failed to cite the charging statute.

¶ 9. Article 3, Section 27 of the Mississippi Constitution provides, in pertinent part, that:

No person shall, for any indictable offense, be proceeded against criminally by information, except in cases ... where a defendant represented by counsel by sworn statement waives indictment[.]

[365]*365At the guilty plea proceeding, Diggs, who was represented by trial counsel, acknowledged that he understood the nature and consequences of the charge against him. He also acknowledged that he was entitled to have the matter presented to a grand jury. However, Diggs executed a sworn waiver of indictment and consented to be proceeded against by criminal information. Thus, we find that Diggs was lawfully proceeded against by criminal information in accordance with Article B, Section 27 of the Mississippi Constitution. See Edwards v. State, 995 So.2d 824, 826 (¶ ¶ 7-8) (Miss.Ct. App.2008).

¶ 10. In regard to Diggs’s remaining arguments, any complaints regarding non-jurisdictional defects in an indictment are waived upon the defendant’s entry of a guilty plea. Harris v. State, 811 So.2d 37B, 374 (¶ ¶ 6-7) (Miss.Ct.App.2001). We must note that the information did in fact cite the charging statute for armed robbery. Thus, there is no basis for this argument. Also, Diggs’s argument that his indictment failed to put him on notice that the first ten years of his sentence for armed robbery were mandatory is non-jurisdictional in nature. Thus, Diggs waived this argument upon the entry of his guilty plea. See id. (finding that a defendant’s argument that his indictment was deficient because it failed to put him on notice of restrictions denying parole and earned-time credit for the first ten years of his sentence for armed robbery were non-jurisdictional in nature and, thus, waived upon the entry of his guilty plea).

C. Firearm

¶ 11. Diggs contends that his guilty plea is invalid because there was no firearm introduced into evidence to substantiate the charge of armed robbery. However, because Diggs pleaded guilty to the charge of armed robbery, he waived his right to challenge the sufficiency of the State’s evidence. See Young v. State,

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Bluebook (online)
46 So. 3d 361, 2010 Miss. App. LEXIS 55, 2010 WL 432312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diggs-v-state-missctapp-2010.