Retherford v. State

749 So. 2d 269, 1999 WL 690184
CourtCourt of Appeals of Mississippi
DecidedSeptember 7, 1999
Docket1998-CP-01342-COA
StatusPublished
Cited by18 cases

This text of 749 So. 2d 269 (Retherford 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
Retherford v. State, 749 So. 2d 269, 1999 WL 690184 (Mich. Ct. App. 1999).

Opinion

749 So.2d 269 (1999)

Alger Adam RETHERFORD, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1998-CP-01342-COA.

Court of Appeals of Mississippi.

September 7, 1999.

*270 Alger Adam Retherford, Appellant, pro se.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

Before KING, P.J., IRVING, and LEE, JJ.

LEE, J., for the Court:

¶ 1. Alger Adam Retherford entered pleas of guilty to the charges of armed robbery and murder. Retherford challenges his convictions under the post conviction collateral relief act. Retherford filed two pro se motions to set aside conviction and sentencing. Retherford was denied relief by the trial court under his second motion to set aside conviction and sentence. Feeling aggrieved by this decision Retherford filed his pro se brief perfecting his appeal and argues the following issues: (1) whether the trial court erred in denying the motion filed by Retherford as procedurally barred due to a failure to comply with the statute of limitations and res judicata, (2) whether the trial court contravened public policy in denying Retherford's motion to set aside conviction and sentence, (3) whether the trial court denied Retherford a liberty interest, (4) whether the trial court exceeded its statutory authority in sentencing, and (5) whether the trial judge erred in ordering Retherford to pay a three hundred dollar fine for filing frivolous motions. Finding these issues to be without merit, this Court affirms the decision of the trial court.

FACTS

¶ 2. In 1976, Retherford entered pleas of guilty to the charges of armed robbery and murder. Retherford was sentenced to serve a term of 80 years in the Mississippi State Penitentiary at Parchman, Mississippi for the crime of armed robbery, and was sentenced to serve a term of life imprisonment to run consecutively after the sentence imposed for the armed robbery conviction for murder. Although we do not have a copy of the first motion to vacate *271 order of conviction and set aside sentence, the trial judge made a finding of fact in its order overruling motion to vacate and set aside sentence dated July 19, 1994, which indicates that the aforementioned motion was filed July 7, 1994. Additionally, Retherford concedes in his subsequent motion to vacate sentence that he had previously sought relief in the Circuit Court of Pearl River County. Retherford further stated in his subsequent motion that in his first motion he sought relief on the following basis: "(a) the trial court did not advise him of his constitutional right to the privilege against self-incrimination, and (b) the trial court did not advise him of his constitutional right to confront and cross-examine adverse witnesses." In reference to the first motion filed by Retherford the trial court stated the following reasons for dismissing said motion:

(1) Section 99-39-5(2), Mississippi Code of 1972, annotated and amended, requires that in case of a guilty plea, a motion for relief under the Mississippi Uniform Post Conviction Collateral Relief Act must be filed within three (3) years after the entry of the Judgment of Conviction. This court specifically finds that the statute of limitations contained in said statute obviously began to run from the date of enactment of said statute and, therefore, specifically finds that three (3) years have elapsed since said section was enacted, said date said statute became effective being April 17, 1984, and the court finds that this motion was, in fact, filed more than ten years after the enactment of said statute. The court specifically finds that the movant's motion to vacate order of conviction and sentence is barred by the statute of limitations, as set out in Section 99-39-5(2).
(2) The court finds that all of the allegations in said motion are matters which should have been raised on appeal to the Mississippi State Supreme Court.... Further, from close examination of the entire record in this matter, the court finds that said allegations in the motion are not well taken and are contradictory to the transcript of the sworn testimony given by the defendant at his arraignment and sentencing and that said motion plainly appears on its face, because of the prior proceeding in this case, that the movant would not be entitled to any relief, even if this matter were not barred by the statute of limitations.

Although the trial judge held that the motion to set aside conviction and sentence had no merit and was time barred, he did hold that Retherford's argument for reduction of sentence was well taken, and the sentence was reduced from 80 years to 53.9 years. On July 16, 1998, Retherford filed a second pro se motion to vacate and set aside conviction and sentence.

¶ 3. In the motion filed on July 16, 1998, Retherford argued that the "circuit court" committed plain error when exceeding its statutory authority in sentencing under MCA § 99-19-3 (1972) without first securing a legal conviction, and contravened the public policy of Mississippi, as well as Retherford's "right to equal protection and due process of law guaranteed by amendment fourteen to the United States Constitution, and Article III, Section 14 to the Mississippi Constitution of 1890." Retherford elaborated on his argument by contending that his pleas of guilty were unintelligent and involuntary. Additionally, Retherford argued that he was not advised of fundamental constitutional rights, more specifically, Retherford's privilege against compulsory self-incrimination and to confront and cross-examine adverse witnesses. Furthermore, Retherford argued that since his pleas were not made voluntarily and intelligently there was no legal conviction and, therefore pursuant to Mississippi Code Annotated Section 99-19-3 the trial court had no authority to impose a sentence. On August 20, 1998, the court entered an order dismissing the aforementioned motion.

¶ 4. The trial judge followed the logic it had previously enumerated in its aforementioned *272 order in 1994, and held that the successive motion filed by Retherford was procedurally barred under the post conviction collateral relief act. The motion was barred under both the statute of limitations and res judicata. As a result of the second motion, the trial judge determined that said motion was frivolous and Retherford was sanctioned in the sum of three hundred dollars. On September 4, 1998, Retherford filed his motion to appeal in former pauperis and said order was granted.

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FILED BY RETHERFORD AS PROCEDURALLY BARRED DUE TO A FAILURE TO COMPLY WITH THE STATUTE OF LIMITATIONS AND RES JUDICATA.
II. WHETHER THE TRIAL COURT CONTRAVENED PUBLIC POLICY IN DENYING RETHERFORD'S MOTION TO SET ASIDE CONVICTION AND SENTENCE.
III. WHETHER THE TRIAL COURT DENIED RETHERFORD A LIBERTY INTEREST.

¶ 5. The above referenced issues will be addressed together since they all ultimately result in the same disposition. This Court will briefly summarize all of the arguments presented by Retherford in issues one through three. In issue one, Retherford contends that there are exceptions to the procedural time bars, and states, "[f]or example, this Court has repeatedly held that `...

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Bluebook (online)
749 So. 2d 269, 1999 WL 690184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/retherford-v-state-missctapp-1999.