Before Pittman, P.j., Smith And Mills, JJ.
The opinion of the court was delivered by: Smith, Justice,
DATE OF JUDGMENT: 10/02/1997 TRIAL JUDGE: HON. FRANK ALLISON RUSSELL COURT FROM WHICH APPEALED: TISHOMINGO COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
DISPOSITION: AFFIRMED - 1/14/99
¶1. This appeal is from an Order dated October 2, 1997, of the Circuit Court of Tishomingo County granting in part and denying in part a motion for post-conviction collateral relief filed by Darryl Bannister on April 20, 1993. The motion sought to vacate Bannister's convictions upon pleas of guilty, entered on April 27, 1990, to capital murder, burglary, armed robbery, and two counts of escape.
¶2. The Circuit Court granted Bannister's post-conviction relief motion as to his conviction for burglary , since it was the same crime used as the underlying felony for the capital-murder conviction, and denied the motion as to the other convictions. Feeling aggrieved, Bannister appeals to this Court and raises the following issues:
I. THE COURT ERRED IN CHARGING BANNISTER WITH THREE CRIMES WHEN IN FACT THERE WAS ONLY ONE, THAT BEING CAPITAL MURDER WITH THE UNDERLYING CRIME BEING BURGLARY OF AN OCCUPIED DWELLING AT NIGHT ARMED WITH A DEADLY WEAPON.
II. THE COURT ERRED IN CHARGING AND CONVICTING BANNISTER OF BURGLARY OF A DWELLING AND ARMED ROBBERY, AS THESE TWO CONVICTIONS WERE ONLY ONE OFFENSE, THAT BEING CAPITAL MURDER WITH THE UNDERLYING OFFENSE BEING BURGLARY.
III. THE COURT ERRED IN ACCEPTING BANNISTER'S GUILTY PLEA, AS IT VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION.
IV. THE COURT ERRED IN VACATING AND SETTING ASIDE BANNISTER'S CONVICTION AND SENTENCE FOR THE BURGLARY AND RETAINING HIS CONVICTIONS FOR CAPITAL MURDER AND ARMED ROBBERY AS ALL THREE OF THESE CRIMES WERE ONE OFFENSE, THAT BEING CAPITAL MURDER DURING THE COMMISSION OF A BURGLARY.
V. THE COURT ERRED IN VACATING AND SETTING ASIDE BANNISTER'S CONVICTION AND SENTENCE FOR THE BURGLARY AND RETAINING HIS CONVICTIONS FOR CAPITAL MURDER AND ARMED ROBBERY AS ALL THREE OF THESE CONVICTIONS (PLUS TWO OTHER CONVICTIONS) WERE ALL PART OF ONE PLEA BARGAconcurring.
VI. BANNISTER'S COUNSEL DURING THE TRIAL PHASE WAS INEFFECTIVE, AS HIS COUNSEL (MR. MIKE COOKE) NEVER OBJECTED TO THE DOUBLE JEOPARDY MR. BANNISTER WAS BEING SUBJECTED TO, NOR DID HE EVER ADVISE MR. BANNISTER OF HIS RIGHT TO PROTECTION AGAINST DOUBLE JEOPARDY, AND MR. COOKE ALLOWED BANNISTER TO MAKE A PLEA AGREEMENT THAT WAS IN DIRECT ...