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White v. State

Court of Appeals of Mississippi

January 27, 2015

JESSIE EARL WHITE A/K/A JESSIE E. WHITE A/K/A JESSIE WHITE, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

As Corrected February 13, 2015.

COURT FROM WHICH APPEALED: CLAY COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 07/23/2013, TRIAL JUDGE: HON. LEE J. HOWARD. TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-CONVICTION RELIEF.

FOR APPELLANT: JESSIE EARL WHITE (PRO SE).

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER.

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

OPINION

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

Page 117

EN BANC.

FAIR, J.

¶1. In 1978, Jessie Earl White pled guilty to the rape of a child under the age of twelve. The circuit court sentenced him to life imprisonment. Shortly thereafter, White filed for habeas corpus, alleging that he could only be sentenced to life imprisonment by a jury, not a judge. This pleading was dismissed by the circuit court. More than thirty years later, White has filed a motion for post-conviction relief renewing his claim of an illegal sentence, for the same reason.

¶2. We conclude that the statute in effect at the time of White's offense, plea,

Page 118

and sentence[1] permitted only two sentences for rape of a child under twelve: death or life imprisonment. Accordingly we find the trial court properly dismissed White's motion, and we affirm on that basis.

STANDARD OF REVIEW

¶3. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing " [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. 2014). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶4. When reviewing the denial of a PCR motion, an appellate court " will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss. 2008). Our review of the summary dismissal of a PCR motion, a ...


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