Fleming v. State

97 So. 3d 1234, 2011 WL 6156847, 2011 Miss. App. LEXIS 776
CourtCourt of Appeals of Mississippi
DecidedDecember 13, 2011
DocketNo. 2010-CA-01590-COA
StatusPublished
Cited by3 cases

This text of 97 So. 3d 1234 (Fleming 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
Fleming v. State, 97 So. 3d 1234, 2011 WL 6156847, 2011 Miss. App. LEXIS 776 (Mich. Ct. App. 2011).

Opinion

RUSSELL, J.,

for the Court:

¶ 1. Terry Fleming appeals the Hinds County Circuit Court’s judgment denying his motion for post-conviction relief. He argues the circuit court erred in failing to resentence him as a non-habitual offender due to the expungement of one of his felony convictions after he was sentenced. Upon review, we find no error and affirm the circuit court’s denial of post-conviction relief.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1993, 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 previously affirmed by this Court, and the Mississippi Supreme Court denied certio-rari on October 24, 2002.

¶ 3. 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. On January 6, 2010, the supreme court entered an order granting Fleming leave to proceed and directed the circuit court to conduct an evidentiary hearing. On February 25, 2010, Fleming filed a motion for post-conviction relief seeking to be resen-tenced as a non-habitual offender due to the expungement of his 1994 felony conviction. The circuit court denied Fleming’s motion, and he appeals that decision. We are presented with two issues on appeal: (1) whether Fleming’s motion for post-conviction relief was time-barred and (2) whether Fleming should be resentenced as a non-habitual offender where he had two prior felony convictions at the time of his sentencing as a habitual offender, but one felony was later expunged. Upon review, we find no error and affirm.

DISCUSSION

¶ 4. The circuit court’s denial of a motion for post-conviction relief will not be reversed unless its decision was clearly erroneous. Martin v. State, 66 So.3d 1288, 1289 (¶ 3) (Miss.Ct.App.2011) (citing Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002)). “However, when issues of law are raised, the proper standard of review is de novo.” Id. (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

I. Whether Fleming’s motion for post-conviction relief was time-barred.

¶ 5. The State contends Fleming’s motion for post-conviction relief was time-barred. In Mississippi, a motion for post-conviction relief must be filed within the following time frame:

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment or conviction.

Miss.Code Ann. § 99-39-5(2) (Supp.2011).

¶ 6. In the instant case, Fleming was required to file his motion for post-convic[1236]*1236tion relief within three years “after the time in which [Fleming’s] direct appeal [was] ruled upon by the Supreme Court of Mississippi.” Miss.Code Ann. § 99-39-5(2). Our supreme court denied Fleming’s petition for writ of certiorari on October 24, 2002.1 Fleming did not file his motion until February 25, 2010 — well over three years after the supreme court’s order denying certiorari. Therefore, Fleming’s motion for post-conviction relief was time-barred unless he met an exception to the three-year statute of limitations.

¶ 7. Fleming cites the following statute to support his position that his ease was excepted from the statute of limitations:2

That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentenced]

Miss.Code Ann. § 99 — 39—5(2)(a)(i) (emphasis added). Fleming argues his case fell under this exception to the three-year statute of limitations because the expungement of his 1994 conviction by the circuit court in 2009 was an “intervening decision.” An “intervening decision” under this section refers to case law — a decision of the “Supreme Court of either the State of Mississippi or the United States”3 — not an order of expungement entered by a circuit court. See Glenn v. State, 940 So.2d 969, 970-71 (¶¶4-5) (Miss.Ct.App.2006) (discussing “intervening case law”). Further, Fleming failed to provide any intervening decision by the Mississippi Supreme Court or the United States Supreme Court that would adversely affect the outcome of his conviction or sentence. See Oaks v. State, 912 So.2d 1075, 1077 (¶ 7) (Miss.Ct.App.2005) (holding petitioner’s failure to “present any intervening decision from the Supreme Court of either the United States or the State of Mississippi which would have actually adversely affected the outcome of his conviction or sentence” rendered his motion for post-conviction relief time-barred). Because Fleming failed to cite or argue any relevant exception, we find that Fleming’s motion for post-conviction relief was time-barred. Notwithstanding this time bar, we will address the merits of Fleming’s argument.

II. Whether Fleming should be re-sentenced as a non-habitual offender where he had two prior felony convictions at the time of his sentencing as a habitual offender, but one felony was later expunged.

8. Fleming argues that he is entitled to be resentenced as a non-habitual offender due to the expungement of his 1994 conviction in 2009. Our habitual-offender statute provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) [1237]*1237year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-81 (Rev.2007) (emphasis added).

¶ 9. Fleming does not dispute being sentenced as a habitual offender at the time of his 2000 convictions.

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