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Allen v. State

Court of Appeals of Mississippi

April 14, 2015

GREGORY KENDALL ALLEN, JR. A/K/A GREGORY K. ALLEN, JR. A/K/A GREGORY ALLEN A/K/A GREGORY K. ALLEN, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/14/2014. TRIAL JUDGE: HON. KATHY KING JACKSON. TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POSTCONVICTION RELIEF.

GREGORY KENDALL ALLEN JR., APPELLANT, Pro se.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: STEPHANIE BRELAND WOOD.

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

OPINION

Page 499

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

IRVING, P.J.

[¶1] The Jackson County Circuit Court summarily dismissed Gregory Allen's motion for post-conviction relief (PCR). Allen, proceeding pro se, appeals and asserts: (1) he was unconstitutionally sentenced; (2) he was served with a defective indictment; (3) his plea of guilty was involuntarily made; (4) he received ineffective assistance of counsel; and (5) he was denied a speedy trial.

[¶2] We affirm the order of the circuit court denying substantive relief. However, we remand this case for correction of the original sentencing order.

FACTS

[¶3] Allen was charged with two counts of sexual battery for vaginally and anally penetrating his six-year-old half-sister. He was also charged with one count of touching a child for lustful purposes. He entered an agreement with the State, wherein he agreed to plead guilty to the two counts of sexual battery, and the State agreed to dismiss Count III--the charge of touching a child for lustful purposes. The circuit court accepted Allen's plea, dismissed count three of the indictment, and sentenced Allen to two concurrent twentyfive- year terms, with thirteen years to serve and twelve years of post-release supervision (PRS), all in the custody of the Mississippi Department of Corrections (MDOC).

DISCUSSION

[¶4] " In reviewing a trial court's dismissal of a [PCR motion], our standard of review is well-[settled]. We will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss. Ct. App. 2004). " However, where questions of law are raised[,] the applicable standard of review is de novo." Id. (quoting Pace v. State, 770 So.2d 1052 (¶ 4) (Miss. Ct. App. 2000)).

[¶5] Allen's main argument for the first three issues on appeal stems from the dismissal of Count III of the indictment. Allen argues that he could not be charged for that offense under Mississippi Code Annotated section 97-5-23(1) (Rev. 2014) because he was not above the age of eighteen, as ...


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