283 So.3d 217
Miss. Ct. App.2019Background
- Jenkins pleaded guilty to two counts of gratification of lust (Miss. Code § 97-5-23(1)) involving a minor and was sentenced to consecutive terms with suspended portions and post-release supervision.
- He filed a timely post-conviction relief (PCR) motion claiming the indictment was fatally defective and deprived him of due process and notice.
- Jenkins argued the indictment omitted (1) the word “feloniously” and (2) the phrase “against the peace and dignity of the State” at the end of each count.
- The circuit court denied the PCR; Jenkins appealed pro se. The Court of Appeals reviewed legal issues de novo and factual findings for clear error.
- The court found the indictment tracked the statutory language, contained all essential elements, and concluded with the constitutionally required phrase (at the end of the entire indictment), and it rejected a new issue raised in Jenkins’s reply brief as procedurally barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of the word “feloniously” in the indictment was fatal | Jenkins: omission deprived him of notice and could mean misdemeanor vs felony | State: statute does not use “feloniously”; indictment tracked statutory language and charged intent; guilty plea confirmed notice | Court: Not fatal — word not an essential element; indictment sufficient |
| Whether each count must individually end with “against the peace and dignity of the State” | Jenkins: omission of the phrase after Count I made indictment defective | State: Constitution requires the phrase to conclude the indictment; it may appear once at the end | Court: Not fatal — concluding phrase may appear once at indictment’s end; form issue waived by guilty plea |
| Whether failure to allege “with or without consent” (raised in reply brief) is reviewable | Jenkins (in reply): omission renders indictment defective | State: issue not preserved and waived by guilty plea | Court: Barred — not considered first raised in reply; waived by plea |
| Whether guilty plea waives these defects | Jenkins: challenged defects despite guilty plea | State: knowing, voluntary plea waives non-jurisdictional defects; cannot waive lack of an essential element | Court: Plea waived form defects; no essential element omitted, so waiver applies |
Key Cases Cited
- Bass v. State, 237 So. 3d 172 (Miss. Ct. App.) (standard of review for PCR)
- Bryant v. State, 238 So. 3d 1213 (Miss. Ct. App.) (indictment must provide fair notice and list essential elements)
- Gilmer v. State, 955 So. 2d 829 (Miss.) (three-part sufficiency test for indictments)
- Henderson v. State, 445 So. 2d 1364 (Miss.) (indictment sufficient if fair reading makes charge clear)
- Pitts v. State, 249 So. 3d 472 (Miss. Ct. App.) (tracking statutory language is sufficient notice)
- Pegues v. State, 214 So. 3d 1080 (Miss. Ct. App.) (concluding phrase need only appear at indictment’s end; form defect)
- Moore v. State, 250 So. 3d 521 (Miss. Ct. App.) (court will not consider issues first raised in reply brief)