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Wilson v. Mississippi Dept. of Corrections

Court of Appeals of Mississippi

July 30, 2013

Bobby Earl WILSON, Jr., Appellant
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.

Rehearing Denied Nov. 12, 2013.

Page 90

Bobby Earl Wilson Jr., appellant, pro se.

Office of the Attorney General by R. Stewart Smith Jr., attorney for appellee.

Before IRVING, P.J., BARNES and MAXWELL, JJ.

BARNES, J.

¶ 1. On August 5, 1994, Bobby Earl Wilson Jr. pleaded guilty to auto burglary in the Warren County Circuit Court. He received a suspended sentence of five years and was ordered to serve probation during that five years. Wilson was charged with attempted grand larceny a few months later, and his suspended sentence was revoked on August 8, 1995. He was remanded into the custody of the Mississippi Department of Corrections (MDOC) and received credit for time served in county jail. The notice of criminal disposition dated September 19, 1995, listed his jail-time credit as 118 days. Wilson was discharged from custody on August 1, 1997. Wilson was convicted of bank robbery on December 15, 2004, and his 1994 auto burglary conviction was used to enhance his sentence to life without parole.

¶ 2. In 2010, Wilson requested copies of the sentencing orders, and a notice of criminal disposition dated July 21, 2010, listed his time-served credit as 188 days. Unlike the prior disposition, credit was given for time served prior the entry of his guilty plea for the 1994 conviction. As a result, Wilson filed a complaint regarding the error in computation through the MDOC's Administrative Remedy Program (ARP). In the " First Step Response" dated November 30, 2010, the MDOC noted that Wilson was no longer serving the sentence and any " credit" he qualified for could not be applied to his new sentence. Thus, his discharge certificate for the 1994 conviction could not be voided. Wilson canceled the ARP complaint at that point.

¶ 3. Wilson filed an " Application for Writ of Habeas Corpus" with the Sunflower County Circuit Court on April 11, 2011, arguing that he was given more credit for time served than he was due.[1] He claims that this error resulted in an early release from custody and deprived him of the opportunity to file a motion for post-conviction relief (PCR) for his 1994 conviction, which would have alleged ineffective assistance of counsel. See Miss.Code Ann. § 99-39-5(2) (Supp.2012) (A petitioner who pleads guilty must file a PCR motion within three years after the entry of the judgment of conviction.). On January 18, 2012, a prehearing conference was held. At the hearing, the circuit court concluded that Wilson's application was a PCR motion and dismissed it as being time-barred, as it was filed thirteen years after the entry of judgment. The circuit court issued its opinion and order on February 3, 2012.

¶ 4. In the meantime, Wilson again attempted to pursue the issue through the ARP. A " Second Step Response" form, dated August 5, 2011, stated that Wilson received an in-person interview and was told that a circuit judge would have to issue an amended order to have his file corrected. He was given permission at that point to seek judicial review of the MDOC's decision. However, there is nothing in the record to reflect that Wilson submitted his second MDOC ARP review

Page 91

to the circuit court until after the court had issued its opinion and order.

¶ 5. Wilson filed a motion to reconsider the Sunflower County Circuit Court's judgment, arguing his application for writ was not a PCR motion, as he was not attacking his conviction or sentence; rather, he was merely trying to have his computation of time corrected through the ARP. The circuit court denied the motion, noting that Wilson was required to seek judicial review of an ARP decision within thirty days and that Wilson filed his application for writ four months after the MDOC's November 30, 2010 decision. The circuit court subsequently reiterated this holding in its denial of Wilson's " Motion for Relief from Opinions and Orders" that he filed on June 20, 2012. The circuit court also noted in the order dated July 6, 2012, that Wilson had already been allowed to proceed with his appeal to the Mississippi Supreme Court on June 5, 2012. Wilson also filed a motion to amend the record on July 10, 2012, which was denied.

¶ 6. Wilson appeals the circuit court's dismissal of his motions. Upon review, we ...


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