Before McMILLIN, P.j., Diaz, And King, JJ.
The opinion of the court was delivered by: Diaz, J.
DATE OF JUDGMENT: 06/09/1995
TRIAL JUDGE: HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
TRIAL COURT DISPOSITION: PCR DISMISSED AS PROCEDURALLY BARRED
¶1. James M. Lyle, IV, appeals to this Court pro se the decision of the Circuit Court of Harrison County, Second Judicial District denying his motion for post conviction relief. The defendant asserts the following issues in this appeal: (1) that the circuit court was in error in dismissing his petitions for post conviction collateral relief as barred as successive writs, (2) that the circuit court erred in failing to grant him an evidentiary hearing on the issues asserted in his petitions for post conviction collateral relief and (3) that the issues asserted in his petitions for post conviction collateral relief fall under the Supreme Court's appellate review pursuant to the "plain error" doctrine, fundamental miscarriage of Justice and actual innocence standards. We find that the defendant has failed to prove all three of these claims. Therefore, we affirm the ruling of the circuit court.
¶2. On March 19, 1993, James Matin Lyle, IV, was charged with the transfer of a controlled substance, less than one (1) ounce of marijuana on October 1, 1992, and again on October 2, 1992, in Harrison County, Mississippi to Gulfport Police Detective Mike Hall in violation of Miss.Code Ann. § 41-29-139 (Rev. 1993). Lyle entered pleas of guilty to the crimes of sale of marijuana. Lyle had previously been convicted of felonies, one involving possession of a controlled substance and the other involving embezzlement. The court sentenced Lyle to serve terms of six years and three years, consecutively, without parole.
¶3. The district attorney recommended and the court ordered that Lyle be sentenced only to three years on the second count, finding it to be proportionate to the crime. The court entered the order on October 4, 1993. Lyle filed a Motion to Vacate and Set Aside convictions on April 4, 1994. The circuit court treated the motion as an action for relief under the Post Conviction Relief Act. The court denied relief. Lyle filed two additional Motions for Post Conviction Collateral Relief on October 4, 1996. The court denied the Motions as being successive. The court entered another order on January 8, 1996 denying Lyle's relief and finding that he had again sought post-conviction collateral relief for convictions after the court had already ruled upon his original motion. Lyle filed a motion of appeal asserting that he wished to appeal the order entered January 8, 1997.
¶4. Although the appellant's appeal from Pearl River County Circuit Court is difficult to understand, this Court follows the dictates of Myers v. State, 583 So.2d 174, 176 (Miss. 1991) by taking into account the fact that a prisoner proceeding pro se deserves credit for allegations that are not well plead and "that a prisoner's meritorious complaint may not be lost because [it is] inartfully drafted."
I. DID THE LOWER COURT ERR IN DISMISSING APPELLANT'S PETITIONS FOR POST CONVICTION COLLATERAL RELIEF AS BARRED AS SUCCESSIVE WRITS?
¶5. The defendant argues that his former appointed attorney tricked him into voluntarily dismissing his first appeal knowing that any new petitions would be dismissed as successive writs because Lyle and his family were unable to pay his attorney's fees. The defendant cites no legal authority in support of this assignment of error. The supreme court has repeatedly stated that it is the appellant's duty to provide authority in support of his claims of error. Drennan v. State, 695 So.2d 581, 585-86 (Miss. 1997). Nevertheless, a review of the merits of this issue shows this assignment of error is without merit. Lyle's petitions were successive, and Mississippi law does bar successive petitions. In Hodgin v. State, 710 So.2d 404 (Miss. 1998), the Mississippi Supreme Court found consideration of a successive application was barred under Miss.Code Ann. § 99-39-27(9) (Rev. 1994). The inmate contended that his ...