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Pegues v. State

Court of Appeals of Mississippi

April 4, 2017

BOBBY PEGUES APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/29/2016

         LAFAYETTE COUNTY CIRCUIT COURT HON. ANDREW K. HOWORTH TRIAL JUDGE

          ATTORNEY FOR APPELLANT: BOBBY PEGUES (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN

          BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

          FAIR, J.

         ¶1. In April 2015, Bobby Pegues pled guilty to two counts of sale of a controlled substance. He was sentenced to eight years on each count, to be served consecutively, with one year suspended from the second sentence. Pegues subsequently filed a motion for post-conviction relief alleging, among other things, that his indictment was defective because it failed to conclude with the words "against the peace and dignity of the state." But Pegues's indictment does, in fact, conclude with those words, so the circuit court dismissed the PCR motion without an evidentiary hearing. On appeal, we find no error and affirm.

         STANDARD OF REVIEW

         ¶2. 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) (Rev. 2015). 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).

         ¶3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

         DISCUSSION

         1. Indictment - Constitutional Requirements

         ¶4. Pegues contends that his indictment violates Article 6, Section 169 of the Mississippi Constitution, which provides in relevant part that "all indictments shall conclude 'against the peace and dignity of the state.'" Our courts have enforced this constitutional requirement, even though it has been called "idle and meaningless." See McNeal v. State, 658 So.2d 1345, 1349 (Miss. 1995) (quoting Love v. State, 8 So. 465, 465 (Miss. 1891)).

         ¶5. While the concluding statement is, in fact, required, it is a matter of the form of the indictment. Such claims must be raised as a demurrer to the indictment and are waived by a valid guilty plea. Brandau v. State, 662 So.2d 1051, 1054-55 (Miss. 1995); see also Miss. Code Ann. ยง 99-7-21 (Rev. 2015). As ...


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