291 So.3d 788
Miss. Ct. App.2019Background
- Jimmy Powell (aka Jamel/Jimmy Hobson) pled guilty in 1983 to two counts of armed robbery and received consecutive terms (15 and 20 years).
- Because his convictions predated Mississippi’s PCR statute, his window to file a post-conviction relief (PCR) petition expired at the end of 1987.
- Powell filed a first set of PCR motions in 1994 (dismissed as untimely) and a second set in 1996 (dismissed); he filed a third set in 2018, the subject of this appeal.
- The Copiah County Circuit Court dismissed the 2018 petitions with prejudice as time-barred and as successive under the Uniform Post-Conviction Collateral Relief Act.
- Powell argued the indictments were void because they alleged "armed robbery" (not the statute title) and omitted the phrase "by violence to their person," thereby depriving him of notice.
- The Court of Appeals affirmed, holding the petitions were time-barred and successive, and that the indictments sufficiently alleged the elements of armed robbery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of PCR | Powell asserted right to collateral review despite delay | State: convictions predate PCR statute; limitation expired 1987 | Court: PCRs time barred; first available window closed in 1987; 2018 petitions untimely |
| Successive-writ bar | Powell maintained constitutional claim should overcome bar | State: prior dismissals operate as bar under section 99-39-23(6) | Court: successive-writ bar applies; this is Powell’s third dismissed petition |
| Exception for illegal sentence/fundamental right | Powell claimed procedural bars don’t apply because of constitutional right to be heard on illegal sentence | State: Powell merely alleges constitutional violation and fails to show an illegal sentence | Court: mere assertion insufficient; claims do not demonstrate an illegal sentence to overcome procedural bars |
| Indictment sufficiency (elements/terminology) | Powell argued indictments void because they used "armed robbery" and omitted "by violence to their person" | State: indictments fairly read allege putting victims in fear by display of a firearm, stating statutory elements | Court: indictments sufficiently charged armed robbery; wording "armed robbery" is commonly used and elements were alleged |
Key Cases Cited
- Brown v. State, 731 So. 2d 595 (Miss. 1999) (standard of review for PCR denials)
- Edmond v. State, 845 So. 2d 701 (Miss. Ct. App. 2003) (application of PCR time limits to convictions predating the statute)
- Odom v. State, 483 So. 2d 343 (Miss. 1986) (tolling/availability rules for pre‑statute convictions)
- Rowland v. State, 42 So. 3d 503 (Miss. 2010) (procedural bars excepted for errors affecting fundamental constitutional rights)
- Alexander v. State, 879 So. 2d 512 (Miss. Ct. App. 2004) (freedom from illegal sentence is a fundamental right)
- Johnston v. State, 172 So. 3d 756 (Miss. Ct. App. 2012) (mere assertion of constitutional error is insufficient to evade procedural bars)
- Lenoir v. State, 224 So. 3d 85 (Miss. 2017) (affirming use of the term "armed robbery" under section 97-3-79)
- State v. Hawkins, 145 So. 3d 636 (Miss. 2014) (indictment stating statutory language and fair reading suffices)
- Oliver v. State, 234 So. 3d 443 (Miss. Ct. App. 2017) (elements required to prove armed robbery)