Ross v. State
2012 Miss. App. LEXIS 170
| Miss. Ct. App. | 2012Background
- Ross was indicted in 1999 for three burglary counts, larceny of a dwelling, and attempted burglary; he pled guilty in 2000 to burglary and grand larceny, with other counts retired.
- Sentences were ten years for burglary and five years for grand larceny, to run concurrently, with RID consideration and jurisdiction retained.
- RID completion in 2001 led to probation in 2001; probation revoked in 2002, resulting in concurrent five-year sentences.
- In 2010 Ross filed a petition to vacate illegal sentence treated as a post-conviction relief (PCR) motion; the trial court denied as time-barred under Mississippi Code Annotated section 99-39-5.
- Ross appeals challenging (a) legality of sentence, (b) trial court jurisdiction to accept guilty plea without indictment, and (c) whether multi-count plea foreclosed proper conviction due to possible merger of larceny and burglary.
- Court confirms Ross’s PCR motion was untimely and that no statutory exceptions or constitutional rights exceptions apply to waive the time bar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PCR time bar has exceptions | Ross | Ross argues exceptions apply | No exceptions apply; PCR time-bar stands |
| Whether lack of grand jury indictment affects legality | Ross | No jurisdictional defect; waiver via plea | Waiver via guilty plea to grand larceny; no illegal sentence due to indictment issue. |
| Whether larceny merged into burglary in plea | Ross | Plea to larceny; burglary as actual charge | Court treated plea as valid; no error in sentencing; Ross waived the merger issue. |
Key Cases Cited
- Chandler v. State, 44 So.3d 442 (Miss.Ct.App.2010) (PCR time bar exceptions require further basis to waive)
- Holloway v. State, 31 So.3d 656 (Miss.Ct.App.2010) (standard of review for PCR factual findings de novo on law)
- Jefferson v. State, 556 So.2d 1016 (Miss.1989) (waiver of indictment rights when burglary properly charged)
- Young v. State, 797 So.2d 239 (Miss.Ct.App.2001) (plea-waiver reasoning for multi-count indictments)
- Box v. State, 241 So.2d 158 (Miss.1970) (overruled by Jefferson; merger considerations clarified)
- Newburn v. State, 205 So.2d 260 (Miss.1967) (two crimes in one burglary indictment; merger implications)
- Stovall v. State, 873 So.2d 1056 (Miss.Ct.App.2004) (timeliness and requirements for PCR petitions)