Wanda Turner-Lee Abioto, attorney for appellant.
Office of the Attorney General by Scott Stuart, attorney for appellee.
Before GRIFFIS, P.J., ROBERTS and FAIR, JJ.
¶ 1. In 1999, James Beeks pled guilty to armed robbery. The circuit court sentenced him to thirty years, with ten suspended. After sentencing Beeks, the judge erroneously stated that Beeks was statutorily prohibited from being released for ten years because a firearm was used in the robbery. Beeks interpreted this to mean he would be released in ten years. But when Beeks learned his jailers intended to keep him for the whole twenty years, he filed a petition to clarify his sentence. The trial court denied it. This appeal stems from Beeks's second filing— his first styled a motion for post-conviction relief (PCR)— where he argues that his misunderstanding of the sentence rendered his guilty plea involuntary. The circuit court found the motion barred as a successive writ. We affirm, noting further that Beeks's appeal is actually from the denial of a Rule 60(b) motion to alter or amend the judgment dismissing his PCR motion.
¶ 2. The trial judge unambiguously sentenced Beeks to thirty years in the custody of the Mississippi Department of Corrections, with ten years suspended. But after pronouncing the sentence, the judge added: " Because a firearm was used in the commission of this crime, you will not be eligible for release or consideration for good time for ten years as provided in Section 47-7-3 Sub D, Sub 2-I, Mississippi Code Annotated, 1972."  The sentencing order concluded similarly: " Defendant shall be required to serve a term of ten years. Section 47-7-3(1)(d)(ii)."
¶ 3. It appears the circuit court confused subsections (1)(d)(ii) and (1)(d)(i). Subsection (1)(d)(i) denies parole eligibility for ten years for robbery convictions involving the display of a firearm, but it does not apply to persons convicted after September 30, 1994. After that date, subsection (1)(d)(ii) applies, and it prohibits parole entirely.
¶ 4. Beeks filed a " Petition to Clarify Sentence" in May 2003, where he claimed the trial court's true intent was that he serve only ten years. He also half-heartedly asserted that his sentence was illegal and his guilty plea involuntary. The petition was denied. Beeks attempted to file essentially the same petition in November 2006, under the cause number of his criminal conviction, but it was never actually filed as an original civil action as the PCR Act requires. See Miss.Code Ann. § 99-39-7 (Supp.2013). In 2009, Beeks pursued a Rule 60(b) motion for relief from the denial of his 2003 petition. The trial court denied that as well.
¶ 5. In May 2011, Beeks filed another motion, this one as an original civil action
expressly styled a motion for post-conviction relief. Beeks again contended his guilty plea was involuntary, and he also claimed to have been the victim of ineffective assistance of counsel. The 2011 motion was dismissed as a successive writ, but the trial court did enter a " sua sponte" order under Beeks's criminal cause number, striking the language discussing section 47-7-3(1)(d)(ii) from the sentencing order as erroneous surplusage. See Cochran v. State, 969 So.2d 119, 122 (¶ 9) (Miss.Ct.App.2007) (holding that parole eligibility is not within the trial court's sentencing power and any language regarding parole in a sentencing order is mere surplusage).
¶ 6. Almost forty days after the entry of the dismissal of his 2011 PCR motion, Beeks filed a " Motion to Reconsider Pursuant to Rule 60(b)." The appeal before us is from ...