Before McMILLIN, C.j., King, P.j., And Diaz, J.
The opinion of the court was delivered by: McMILLIN, C.j.
DATE OF JUDGMENT: 06/23/1997 TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
TRIAL COURT DISPOSITION: POST CONVICTION RELIEF DENIED.
DISPOSITION: AFFIRMED AS TO CLAIM THAT SENTENCE DID NOT EXCEED MAX. PRESCRIBED BY LAW. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM DISMISSED FOR LACK OF JURISDICTION. REMANDED FOR A CORRECTED SENTENCING ORDER. -4/6/99
¶1. John Randolph Frazier has filed a pro se appeal from an order of the Circuit Court of Hancock County denying him any relief based on his motion to reconsider sentence. Frazier pled guilty to a charge of negligently causing disfiguring injuries to another while operating a motor vehicle under the influence of alcohol. Frazier purports to raise four issues in his brief. However, two of them turn on essentially the same legal considerations and we will treat them as one issue. As his third issue, Frazier raises a double jeopardy claim, but his argument is nothing more than a rehash of the proposition advanced in his earlier issues to the effect that he was sentenced under a statute different from the one on which he entered his guilty plea. The fourth issue is a claim that he received such ineffective assistance of counsel that his guilty plea was not an informed waiver of his constitutional right to a trial.
A Preliminary Jurisdictional Matter
¶2. The State, separately from its brief on the merits of Frazier's appeal, filed a motion to dismiss the appeal for lack of jurisdiction. The State suggests in that motion that Frazier is improperly attempting to appeal from a guilty plea -- a practice forbidden by Section 99-35-101 of the Mississippi Code. Miss. Code Ann. § 99-35-101 (Rev. 1994). Also, the State urges that Frazier is improperly seeking to have this Court adjudicate issues cognizable under this State's Post-Conviction Relief Act without first filing an appropriate motion under the Act with the trial court as required by Section 99-39-7 of the Mississippi Code. Miss. Code Ann. § 99-39-7 (Rev. 1994).
¶3. One of Frazier's complaints on appeal is that he was improperly sentenced after his guilty plea. Frazier claims that he entered a plea to a lesser-included-offense to the charge in the indictment yet the trial court proceeded to sentence him under the greater crime. As stated earlier, this issue was presented to the trial court in a motion to reconsider his sentence. The trial court denied any relief. Since that issue was first presented to the trial court for consideration, we find the State's position in its motion is not well-taken as to this particular issue. As to the claim that this is an impermissible attempt to appeal from a guilty plea, we find the trial court's failure to grant relief on Frazier's motion to be an appealable order under the holding in Goss v. State, 721 So. 2d 144 (Miss. 1998). In that case, Goss pled guilty to burglary. Several months after being sentenced, Goss moved to have his sentence vacated because he contended that it improperly exposed him to direct State supervision for a term beyond the maximum sentence for burglary. Id. at 145. The Mississippi Supreme Court took jurisdiction of Goss's subsequent appeal and ruled in his favor on that point. Id. We are satisfied that the issue in this case concerning the propriety of Frazier's sentence is sufficiently similar to that in the Goss case to vest this Court with jurisdiction to consider it on the merits. Additionally, because Frazier brought this claim before the trial court but was denied relief, the State's assertion regarding non-compliance with the Post Conviction Relief Act, to the extent it applies, is not well-founded.
¶4. However, as to Frazier's separate claim of ineffective assistance of counsel, we agree with the State that this is a matter cognizable under the Post-Conviction Relief Act and one that, in the case of a guilty plea, must be first raised with the trial court. Miss. Code Ann. § 99-39-7 (Rev. 1994). Since Frazier's motion to reconsider sentence filed with the trial court makes no mention of his counsel's performance, we conclude that we are without jurisdiction to consider this issue.
Whether Frazier's Sentence Was ...