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Summerall v. State

Court of Appeals of Mississippi

December 3, 2013

SHAUNTELL SUMMERALL A/K/A SHAUNTELL MAURICE SUMMERALL A/K/A SHAUNTELL M. SUMMERALL, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/06/2012. TRIAL JUDGE: HON. ROBERT B. HELFRICH. TRIAL COURT MOTION FOR POST-CONVICTION RELIEF DISMISSED.

FOR APPELLANT: SHAUNTELL SUMMERALL (Pro se).

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.

BEFORE IRVING, P.J., ISHEE AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND JAMES, JJ., CONCUR.

OPINION

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

Page 614

FAIR, J.

¶1. In September 1998, Shauntell Summerall pled guilty to armed robbery. He was sentenced to twenty years' imprisonment, with ten suspended. Summerall was released from incarceration sometime in 2007. He was arrested on August 27, 2007, for misdemeanor possession of marijuana, and again on September 12, 2007, for violation of a noise ordinance, disorderly conduct, resisting arrest, and possession of a dirk knife by a convicted felon.

¶2. The trial court revoked Summerall's suspended sentence after he was indicted on the felony weapon possession charge, though the revocation order cites each of the various offenses, as well as failure to pay court costs, fines, and restitution. Summerall was later brought to trial and convicted of the felon-in-possession charge. The conviction was reversed on appeal, and an acquittal was rendered, after this Court found that Summerall's small, fixed-blade knife was not a " dirk knife" prohibited by the statute. Summerall v. State, 41 So.3d 729, 737 (¶ 29) (Miss. Ct. App. 2010).

¶3. Summerall filed a motion for post-conviction relief contending his revocation was illegal because it was predicated on an error of law regarding the knife, and because, so far as the record reveals, none of his other criminal charges were ever substantiated. The trial court dismissed the PCR motion as both time-barred and factually without merit as well. Summerall has appealed.

¶4. We agree that the motion was not time-barred, but we conclude Summerall is not entitled to relief because he admitted he failed to pay his fines, restitution, and court costs.

STANDARD OF REVIEW

¶5. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing " [i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief." Miss. Code Ann. § 99-39-11(2) (Supp. 2013). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶6. When reviewing the denial of a PCR motion, an appellate court " will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss. 2008). Our review of the summary dismissal of a PCR motion, a ...


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