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Mann v. State

Court of Appeals of Mississippi

June 30, 2015

KELLY MANN A/K/A KELLY M. MANN, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: LEAKE COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 05/15/2013. TRIAL JUDGE: HON. MARCUS D. GORDON. TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DISMISSED.

KELLY MANN, APPELLANT, Pro se.

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

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

OPINION

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

BARNES, J.

[¶1] Kelly Mann was indicted on May 5, 1993, for capital murder, while " engaged in the commission of the crime of robbery[.]" On August 9, 1993, based on the State's recommendation, Mann pleaded guilty to lesser charges of simple murder and

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armed robbery. For the murder count, he was sentenced to life in the custody of the Mississippi Department of Corrections. For the armed-robbery conviction, he was sentenced to serve forty years, with the sentence to run consecutively to the life sentence imposed for the murder conviction.

[¶2] This is Mann's fifth motion for post-conviction relief (PCR). Mann's first PCR motion, filed on October 27, 1994, alleged that (1) his guilty plea was involuntary, (2) counsel's performance was ineffective, and (3) his conviction and sentence for murder and armed robbery subjected him to double jeopardy. He also contended that it was reversible error to allow him to plead guilty to armed robbery when he was not indicted for that crime. The motion was denied by the trial court after an evidentiary hearing. The Mississippi Supreme Court, in an unpublished opinion, affirmed the trial court's denial of the PCR motion. See Mann v. State, 703 So.2d 861 (Nov. 6, 1997). Mann filed a second PCR motion in June 1999, which the trial court denied on March 16, 2000.

[¶3] On August 7, 2006, Mann filed a third PCR motion, again seeking to vacate and set aside his conviction and sentence for armed robbery. The trial court dismissed the motion, finding it untimely and successive. See Miss. Code Ann. § 99- 39-5(2) (Supp. 2014); Miss. Code Ann. § 99-39-23(6) (Supp. 2014). This Court affirmed the dismissal on February 3, 2009. See Mann v. State, 2 So.3d 743, 746 (¶ 11) (Miss. Ct.App. 2009).

[¶4] Mann filed a fourth PCR motion on January 19, 2010, which was also denied by the trial court. On November 1, 2011, this Court affirmed the denial of the motion, finding that the PCR motion was time-barred and successive and that the proffered newly discovered evidence did not trigger an exception to these procedural bars. See Mann v. State, 73 So.3d 564, 565-67 (¶ ¶ 6-12) (Miss. Ct.App. 2011).

[¶5] On March 28, 2013, Mann filed his fifth PCR motion, claiming that the trial court " lacked subject matter [jurisdiction] over the offense of armed robbery, which the indictment failed to charge[,] therefore, imposing an illegal sentence." He also argued he was denied due process because his indictment failed to charge the essential elements of armed robbery. Therefore, he requested that the trial court vacate his conviction for armed robbery and resentence him for simple robbery.[1] The trial court appointed counsel to represent Mann. After a hearing on May 9, 2013, the circuit court dismissed the motion, holding:

I recall very well the sentencing of this Defendant, and as argued by the District Attorney, there was not a single person in this [c]ourtroom at that time who did not know that he was pleading guilty to the crime of murder and to the crime of armed robbery. . . . I don't see how in the world he can avoid getting around his Petition to Plead Guilty where in there[,] on at least three ...

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