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Turner v. State

Court of Appeals of Mississippi

June 13, 2017

TIM TURNER, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 12/01/2015

         ITAWAMBA COUNTY CIRCUIT COURT HON. JAMES SETH ANDREW POUNDS TRIAL JUDGE

          ATTORNEY FOR APPELLANT: TIM TURNER (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.

          WESTBROOKS, J.

         ¶1. Tim Turner appeals the Itwamba County Circuit Court's dismissal of his second petition for postconviction relief (PCR). Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On September 28, 2011, Turner entered a guilty plea on one enhanced count of sale of a controlled substance (cocaine). Turner was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC). Twenty-eight years of the sentence were suspended, followed by five years of postrelease supervision (PRS). Turner was given two years of credit for time served and was released on PRS. On November 23, 2011, the State filed a petition to revoke Turner's PRS and to impose his suspended sentence after Turner failed a drug test and failed to comply with other conditions of his release.

         ¶3. On December 8, 2011, a hearing was held on the State's petition. At the conclusion of the hearing, the court found that Turner violated the conditions of his PRS by failing to report to the MDOC; failing to abstain from using illegal drugs; failing to avoid people or places of disreputable or harmful character; and failing to pay court costs and restitution as ordered. As a result, the trial court modified Turner's PRS and ordered him to complete an in-patient rehabilitation program.

         ¶4. On March 15, 2012, Turner was discharged from the program after testing positive for cocaine. The State filed a second petition to revoke Turner's PRS and impose the suspended sentence. The second revocation hearing was held on May 14, 2012. During the hearing, Turner asserted irregularities in his urinalysis, contending that the positive test was not his. Due to the alleged irregularities, Turner performed a hair-follicle drug test to dispute the findings of the urinalysis, and the follicle test was positive for cocaine as well.

         ¶5. Turner then sought to have his urine sample retested; however, the lab had disposed of the urine. The circuit court found Turner in violation of the terms of his modified PRS. Turner's twenty-eight-year sentence was imposed, with eight years suspended and five years to serve on PRS. Turner was returned to the custody of the MDOC. Turner subsequently filed his first PCR petition, arguing that the revocation of his PRS was illegal, his sentence was too harsh, and the March 15, 2012 urinalysis was improper and invalid.

         ¶6. On October 8, 2013, the circuit court denied his PCR petition, and Turner appealed to this Court. We affirmed the circuit court's decision, and the Mississippi Supreme Court denied certiorari. On November 3, 2015, Turner filed his second PCR petition. The circuit court dismissed Turner's second PCR petition, finding that it lacked merit. From that order, Turner now appeals. Finding no error, we affirm.

         STANDARD ...


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