Before Sullivan, P.j., McRAE And Smith, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice
Lindsay v. State, 97-CP-00392-SCT, __ So. 2d __
DATE OF JUDGMENT: 03/12/97
TRIAL JUDGE: HON. GRAY EVANS
COURT FROM WHICH APPEALED: LeFLORE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
DISPOSITION AFFIRMED - 08/13/98
MOTION FOR REHEARING FILED:
¶1. On October 10, 1993, Theodus Lindsay was indicted on charges of armed robbery for stealing a wallet at gun point in Leflore County, Mississippi. After Lindsay entered a plea of guilty before the Honorable Gray Evans, he was convicted and sentenced under Mississippi statute § 97-3-79 for a term of fifteen (15) years, ten of which must be served before he can be eligible for parole. Lindsay was informed of the results of the probable sentence he would receive on two separate occasions, once by the trial Judge, and once by his attorney. His sentence is to run concurrently with a previous unrelated sentence.
¶2. Lindsay alleges he has the HIV virus, and the trial court accepted this allegation as fact in its denial of Post Conviction Relief. He further claims his attorney knew of his diagnosis but this fact was not disclosed to the Judge at the time of sentencing.
¶3. On October 28, 1996, Lindsay entered a motion for Post Conviction Relief to vacate and set-aside his conviction and sentence. In support of this motion Lindsay is claiming that he received ineffective counsel and that the sentence he received was illegal because it was in effect a life sentence. On March 12, 1997, an order was issued by the Circuit Court of Leflore County, Mississippi, dismissing Lindsay's motion. On April 29, 1997, Lindsay appealed the dismissal of his motion to the Mississippi Supreme Court. We find that Lindsay did not receive ineffective assistance of counsel and his allegation that he received an unlawful sentence is without merit.
I. WHETHER LINDSAY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS COUNSEL FAILED TO INFORM THE COURT OF DEFENDANT'S HIV STATUS.
¶4. Lindsay claims because his attorney did not reveal his HIV status, that his attorney was ineffective as counsel, and he was therefore denied his Sixth Amendment right to representation and Fourteenth Amendment right to due process. In a case that involves ineffective assistance of counsel, the test that governs is that which was set out by the U.S. Supreme Court in the case of Strickland v. Washington. This test has been adopted by this Court, and governs in this case. Stringer v. State , 454 So.2d 468, 476 (Miss. 1984). In order to prove that counsel was ineffective a defendant must show 1) counsel's performance was deficient, and 2) the deficiency prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). Both parts of this test must be met for defendant to prove ...