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Hicks v. State

Court of Appeals of Mississippi

September 10, 2013

Alfred HICKS, Appellant
v.
STATE of Mississippi, Appellee.

Page 961

Alfred Hicks, appellant, pro se.

Office of the Attorney General by Elliott George Flaggs, attorney for appellee.

Before IRVING, P.J., ISHEE and FAIR, JJ.

FAIR, J.

¶ 1. Alfred Hicks, while an inmate in custody of the Mississippi Department of Corrections, was indicted for possession of a cell phone in violation of Mississippi Code section 47-5-193. He entered a guilty plea and was sentenced on June 26, 2008.

¶ 2. Hicks waited four years to file a motion for post-conviction relief (PCR) to vacate and set aside his conviction and sentence. Finding his motion untimely and that there existed no exception to the statutory-time bar, the trial court dismissed the motion. Aggrieved, Hicks appeals to this Court. We find no error and affirm the trial court's judgment.

STANDARD OF REVIEW

¶ 3. When this Court reviews the trial court's dismissal of a PCR motion, we " will not disturb the trial court's factual findings unless they are found to be clearly erroneous. However, where questions of law are raised [,] the applicable standard of review is de novo." Terry v. State, 755 So.2d 41, 42 (¶ 4) (Miss.Ct.App.1999).

¶ 4. The proper interpretation of statutes is reviewed de novo. Tillis v. State, 43 So.3d 1127, 1131 (¶ 9) (Miss.2010). In statutory interpretation:

The first question is whether the statute is ambiguous. When a statute is unambiguous, this Court applies the plain meaning of the statute and refrains from the use of statutory construction principles. The Court may not enlarge or restrict a statute where the meaning of the statute is clear. In interpreting statutes, this Court's primary objective is to employ that interpretation which best suits the legislature's true intent or meaning.

(citations omitted).

DISCUSSION

¶ 5. Hicks had three years from the entry of the judgment of his conviction to file a PCR motion pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2012). Generally, claims made outside of the three-year statute of limitations must raise one of the exceptions found in Mississippi Code Annotated section 99-39-5(2)(a)-(b). " Accordingly, we must look to see whether an exception to these procedural bars applies. The movant bears the burden of showing he has met a statutory exception." Bell v. State, 95 So.3d 760, 763 (¶ 10) (Miss.Ct.App.2012) (citation omitted).

¶ 6. Also, " errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act]." Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010). However, mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss.App.Ct.2010). " There must at least appear to ...


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