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Smith v. State

Court of Appeals of Mississippi

January 28, 2014

Danny SMITH, Appellant
v.
STATE of Mississippi, Appellee.

Page 1188

[Copyrighted Material Omitted]

Page 1189

Danny Smith, appellant, pro se.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before IRVING, P.J., BARNES, ROBERTS and JAMES, JJ.

BARNES, J.

¶ 1. Danny Smith was charged with felony shoplifting as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Smith was also indicted on fourteen counts of uttering a forgery. On March 21, 2011, Smith pleaded guilty to the charge of shoplifting and was sentenced to ten years in the custody of the Mississippi Department of Corrections as a habitual offender, without eligibility for parole or probation, with credit for time served. For this conviction, he was also ordered to pay restitution of $839.24, plus all court costs and a $200 prosecution fee. In exchange for his guilty plea, the fourteen counts of forgery were retired to the inactive files.

¶ 2. However, although the forgery charges were retired, the Adams County Circuit Court entered an order requiring Smith to pay restitution in the amount of $34,304 to the victim of the forgeries, Britton and Koontz Bank. The order also specified that the bank had the right to execute its judgment for the losses against Smith's " vehicles and/or personal property seized by law enforcement authorities." A couple of days later, a writ of garnishment was issued by the Adams County Circuit Clerk.

¶ 3. Smith filed a motion for post-conviction relief (PCR) on February 26, 2012, asserting that: (1) the requirement for him to pay restitution for the forgery charges subjected him to double jeopardy; and (2) allowing the bank to seize his personal property to satisfy the restitution violated his due-process rights. Smith's PCR motion did not concern his guilty plea for his shoplifting conviction; rather, it requested that the circuit court quash the order demanding he pay restitution for the retired forgery charges.[1]

Page 1190

¶ 4. The circuit court denied the PCR motion on June 11, 2012, finding that it did not have jurisdiction to address Smith's claim regarding his violation of due-process rights and concluding that Smith was " not entitled to any relief on the merits, as there was a civil matter, which resolved the disposition as to his personal property as a result of his criminal activities." The circuit court also found no merit to Smith's claim of double jeopardy. Smith appeals, and finding no error, we affirm the judgment. [2]

STANDARD OF REVIEW

¶ 5. A PCR motion will be dismissed " [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). " When considering the dismissal of a PCR motion on appeal, ‘ we review the [circuit] court's findings of fact for clear error.’ " Pepper v. State, 96 So.3d 780, 783 (¶ 6) (Miss.Ct.App.2012) (quoting White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011)).

I. Whether the order to pay restitution for the forgery charges subjected Smith to double jeopardy and was imposed in error.

¶ 6. Although Smith argues that the order to pay restitution for the forgery charges resulted in his being " twice punished for the same offense," we find nothing to support this contention. In order to bar a second prosecution based on double jeopardy, " there must be an actual conviction on the merits." Arrington v. State, 77 So.3d 542, 546 (¶ 11) (Miss.Ct.App.2011). In other words, " before an accused can claim a violation of the state's Double-Jeopardy Clause, ‘ the accused must first suffer an actual acquittal or conviction on the merits of the offense.’ " Id. (quoting State v. Fleming, 726 So.2d 113, 115 (¶ 9) (Miss.1998)).

Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier " having jurisdiction to try the question of the guilt or innocence of the accused." Without risk of a determination of guilt, jeopardy does not ...

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