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Davis v. State

Court of Appeals of Mississippi

September 9, 2014

ANDRE DAVIS, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 05/20/2013. TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN. TRIAL COURT DISPOSITION: DENIED MOTION FOR ORDER TO VACATE PREVIOUS ORDER DISMISSING PETITIONER'S POST-CONVICTION-RELIEF PETITION.

ANDRE DAVIS, APPELLANT, Pro se.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART.

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

OPINION

Page 1034

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

FAIR, J.

¶1. On July 21, 2008, Andre Davis pled guilty to capital murder. Davis was sentenced as an habitual offender to life imprisonment without the possibility of parole pursuant to Mississippi Code Annotated sections 97-3-21 (Rev. 2006) and 99-19-83 (Rev. 2007). Davis retained counsel for his post-conviction-relief (PCR) petition, which was dismissed. Over three years later, Davis filed a pro se motion to vacate the previous order and to be allowed additional time to comply with Mississippi Code Annotated section 99-39-9(3) (Supp. 2013). Davis alternatively sought additional time to file another PCR petition. The court denied the motion and stated that Davis did not need the court's permission to file another petition. We find no abuse of discretion in the circuit court's decision. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Davis was indicted for capital murder on January 23, 2006. At Davis's plea hearing, the State said it would seek the death penalty if the case went to trial. Davis's attorney negotiated an Alford [1] plea to capital murder. After confirming Davis understood his rights, the circuit

Page 1035

judge accepted Davis's Alford plea and sentenced him to life imprisonment without the possibility of parole.

¶3. Davis's counsel filed a PCR petition on July 17, 2009, asserting nearly every ground for relief under Mississippi Code Annotated section 99-39-5 (Supp. 2013), including that his plea was involuntary. Davis's counsel attached a copy of an unsworn affidavit to the petition. On the last page of the affidavit, there was a handwritten note that said the original affidavit had been mailed to Davis at Hardeman County Correctional Facility in Tennessee.[2] The court did not receive a sworn affidavit from Davis as required by Mississippi Code Annotated section 99-39-9(3). Nevertheless, the court addressed the merits of Davis's claim. The court dismissed the petition on April 19, 2010. On August 8, 2011, Davis filed a delayed notice of appeal. The circuit court denied Davis's motion. On February 23, 2012, Davis appealed the court's decision to the Mississippi Supreme Court. The appeal was summarily dismissed for Davis's failure to pay the costs of the appeal.

¶4. On May 17, 2013, Davis filed a motion with the circuit court to vacate the previous order dismissing his PCR petition and for additional time to comply with section 99-39-9(3) or, alternatively, to renew the time to file another PCR ...


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