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Duncan v. State

Court of Appeals of Mississippi

November 4, 2014

WENDELL DUNCAN A/K/A WENDELL AVERY DUNCAN, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 07/09/2013. TRIAL JUDGE: HON.W. ASHLEY HINES. TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-CONVICTION RELIEF.

WENDELL DUNCAN, APPELLANT, Pro se.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY GORE.

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

OPINION

Page 580

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

IRVING, J.

[¶1] Wendall Duncan appeals, for the fourth time, the dismissal of his motion for post-conviction relief (PCR) by the Washington County Circuit Court. Finding no error, we affirm.

FACTS

[¶2] The underlying facts leading up to Duncan's conviction and denial of the first three PCR motions have not changed. On November 30, 1994, a Washington County jury convicted Duncan of conspiracy to commit burglary of a business and burglary of a business. Duncan was sentenced, as an habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007), to serve five years in the custody of the Mississippi Department of Corrections (MDOC) for the conspiracy count and seven years for the burglary-of-a-business count. The sentences were set to run consecutively, for a total of twelve years in the custody of the MDOC. Duncan failed to file a direct appeal after his 1994 conviction and sentence.

[¶3] Duncan was later convicted of armed robbery in March 1995. At the conclusion of that sentencing hearing, the circuit court found that the State had failed to establish that Duncan's two prior convictions arose out of separate incidents at different times. The circuit court then sentenced Duncan, as a non-habitual offender, to thirty years in the custody of the MDOC, to run consecutively to the previously imposed sentence for Duncan's burglary-of-a-business and conspiracy convictions.

[¶4] Duncan filed his first motion for PCR challenging his conspiracy and burglary convictions in early 1996. On July 29, 1996, the circuit court dismissed Duncan's PCR motion. The Mississippi Supreme Court affirmed the circuit court's judgment on June 11, 1998. On January 3, 2008, Duncan filed a motion to vacate the convictions of conspiracy to commit burglary of a business and burglary of a business. The circuit court dismissed that motion, which the court treated as a motion for PCR, as time-barred and successive-writ barred. On appeal, this court affirmed the trial court's dismissal of Duncan's motion for PCR. Duncan v. State, 28 So.3d 665, 667 (¶ ¶ 6-7) (Miss.Ct.App. 2009).

[¶5] On January 19, 2011, the Mississippi Supreme Court dismissed Duncan's motion for leave to proceed in the trial court pursuant to Mississippi Code Annotated section 99-39-7 (Supp. 2014), after finding that Duncan had failed to file a direct appeal of his conspiracy-to-commit-burglary and burglary-of-a-business convictions and sentences. Nonetheless, Duncan filed a motion to correct his sentence in the circuit court, which the circuit court treated as a PCR motion and dismissed as successive-writ barred. This court again affirmed the circuit court's dismissal and again acknowledged that the PCR motion was time-barred and successive-writ barred. Duncan v. State,100 So.3d 996 (Miss.Ct.App. 2012).

[¶6] On July 9, 2013, the circuit court dismissed, for the fourth time, a PCR motion filed by Duncan. This appeal arises from the circuit court's denial of Duncan's fourth PCR motion targeting his twelve-year ...


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