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Borou v. State

Court of Appeals of Mississippi

March 17, 2015

ABDULHKIM BOROU A/K/A ABDULHAKIM BOROU, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/21/2014. TRIAL JUDGE: HON. LEE J. HOWARD. TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-CONVICTION RELIEF.

FOR APPELLANT: MARK KEVIN HORAN, HARTWELL VIRGINIA HARRIS.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.

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

OPINION

Page 621

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

FAIR, J.

¶1. On May 19, 2009, Abdulhkim Borou received a fine and five years of nonadjudicated probation following his offer of a guilty plea. Borou filed a motion for post-conviction relief (PCR), after the court dismissed the charge and expunged Borou's record. The trial court dismissed his motion, stating it had no jurisdiction because Borou was no longer serving his sentence. We find, however, that the court lacked jurisdiction since " nonadjudication" of guilt resulting in dismissal of charges is not a " conviction" or " sentence" within the purview of the Mississippi Uniform Post-Conviction Relief Act. Therefore, Borou lacks standing to make any claims under Mississippi Code Annotated section 99-39-5 (Supp. 2014). The judgment of the trial court is affirmed.

FACTS

¶2. The facts in this case are almost identical to those in Alsahquni v. State, 150 So.3d 159 (Miss.Ct.App. 2014). As a result, Alsahquni controls a majority of our analysis. A legal immigrant to the United States, Borou, like Alsahquni, operated an out-of-state business that sold, among other things, pseudoephedrine. Borou was indicted in the Circuit Court of Lowndes County on three charges of sale of pseudoephedrine over the amounts allowed by law, two of which were dismissed. Borou offered to plead guilty to the third charge on May 19, 2009. The trial court withheld acceptance of Borou's offered guilty plea and placed him on nonadjudicated probation for five years pursuant to Mississippi Code Annotated section 99-15-26. He was also assessed a $5,000 fine. On July 27, 2012, Borou was discharged early from his nonadjudicated probation, and the trial court dismissed the charge against him on December 18, 2012. An order of expungement was entered two days later. Despite the dismissal and expungement, Borou's guilty plea negatively affected his immigration status. There is no evidence or assertion that deportation proceedings have been commenced against Borou.

¶3. Borou filed a PCR motion on January 16, 2014, claiming that his guilty plea was involuntary and that he received ineffective assistance of counsel. Specifically, he claimed his attorney should have advised him of the consequences associated with his guilty plea.[1]

¶4. In dismissing Borou's motion, the court stated it lacked jurisdiction since Borou was not a prisoner in custody when he filed his PCR motion. Aggrieved, Borou appeals.

Page 622

STANDARD OF REVIEW


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