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Maxwell v. State

Court of Appeals of Mississippi

April 11, 2017

ROBERT A. MAXWELL A/K/A ROBERT MAXWELL A/K/A ROBERT ANTHONY MAXWELL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 10/29/2008

         LINCOLN COUNTY CIRCUIT COURT, HON. DAVID H. STRONG JR.

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ERIN E. PRIDGEN.

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN JASON L. DAVIS.

          DISTRICT ATTORNEY: DEWITT T. BATES JR.

          BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

          GRIFFIS, P.J.

         ¶1. Robert A. Maxwell is before this Court on a petition for post-conviction collateral relief (PCCR) where he requested and was granted an out-of-time appeal. The circuit court granted the PCCR motion and allowed Maxwell leave to file an out-of-time appeal. We consider his direct appeal and find no reversible error as to his conviction and sentence.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Maxwell was indicted in Lincoln County on the charge of capital murder. The indictment was subsequently amended to charge Maxwell with murder.

         ¶3. On October 29, 2008, Maxwell was found guilty of the lesser-included offense of manslaughter. Following his conviction, but before sentencing, the State of Mississippi moved to amend the indictment to charge Maxwell as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015). The circuit court granted the motion and sentenced Maxwell to twenty years in the custody of the Mississippi Department of Corrections, to be served day for day pursuant to section 99-19-81.

         ¶4. Two years later, on October 19, 2010, Maxwell filed a pro se notice of appeal. The clerk issued a show-cause notice, which required Maxwell to show cause as to why the appeal "should not be dismissed as untimely filed, for failing to comply with the rules of this court." On November 16, 2010, Maxwell's appeal was dismissed as untimely, and the mandate was issued December 8, 2010.

         ¶5. On February 25, 2015, Maxwell filed an Application for Leave to Proceed in the Trial Court. Maxwell v. State, 2015-M-00302. Maxwell asked the Mississippi Supreme Court to allow him to proceed under the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA). Miss. Code Ann. §§ 99-39-1 to -29 (Rev. 2015). On April 1, 2015, the supreme court entered an order that stated: "After due consideration, we find that Maxwell's application should be dismissed without prejudice to be filed in the trial court." Maxwell v. State, 2015-M-00302 (citing Martin v. State, 556 So.2d 357, 358-60 (Miss. 1990)). In Martin, the supreme court held:

Under this section [(99-39-7)], and [section] 99-39-25, there are only two instances in which this Court can entertain a post-conviction motion. One is where the matter is presented originally to the trial court and thereafter appealed to this Court pursuant to [section] 99-39-25. The other is where the prisoner is required to first seek leave of this ...

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