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Carr v. State

Court of Appeals of Mississippi

April 29, 2014

TIMOTHY LEE CARR, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

DATE OF JUDGMENT: 05/23/2013.

Page 345

COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. BILLY JOE LANDRUM. TRIAL COURT DISPOSITION: DENIED MOTION FOR POST-CONVICTION RELIEF.

FOR APPELLANT: TIMOTHY CARR (Pro se).

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND.

BEFORE LEE, C.J., BARNES AND ISHEE, JJ. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 346

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

LEE, C.J.

[¶1] This appeal arises from the trial court's denial of Timothy Lee Carr's motion for post-conviction relief (PCR). Carr now appeals, arguing the trial court erred: (1) by allowing the State to amend the indictment without providing him sufficient notice; (2) by failing to have a bifurcated sentencing hearing before sentencing him as a habitual offender; and (3) by relying on copies of Carr's two prior felony convictions, which were not introduced into evidence during sentencing.

FACTS AND PROCEDURAL HISTORY

[¶2] Carr was convicted of manslaughter in Jones County Circuit Court on May 25, 2005. This Court affirmed Carr's conviction and subsequently denied rehearing. See Carr v. State, 966 So.2d 197 (Miss. Ct.App. 2007). Carr filed two PCR motions. The Mississippi Supreme Court found both of Carr's motions barred as successive writs. On January 22, 2013, Carr filed another PCR motion seeking relief to eliminate the habitual-offender portion of his sentence. The supreme court found that Carr's motion met the exception to the time-bar and allowed him to proceed in the trial court. The trial court denied Carr's PCR motion.

[¶3] In order to fully review Carr's claim, this Court requested Carr's trial court record, and issued an order for the record to be supplemented. The Mississippi Supreme Court Clerk's Office was unable to locate a copy of the trial court record, including any clerk's papers or transcripts. On December 18, 2013, the record was supplemented with the clerk's papers from the trial court. However, the trial record and transcripts had been checked out from the Jones County Circuit Clerk and never returned. Additionally, sometime prior to July 8, 2008, the State moved to destroy ...


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