Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lowell v. State

Court of Appeals of Mississippi

September 19, 2017

WILLIAM TRAVIS LOWELL A/K/A TRAVIS LOWELL A/K/A WILLIAM T. LOWELL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 08/25/2016

         LOWNDES COUNTY CIRCUIT COURT HON. JAMES T. KITCHENS JR. JUDGE

          ATTORNEY FOR APPELLANT: WILLIAM TRAVIS LOWELL (PRO SE)

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

         EN BANC.

          FAIR, J.

         ¶1. William Lowell pled guilty to a number of theft-related offenses stemming from a crime spree he undertook in May 2011, allegedly to raise money for his wife's medical treatment. Lowell pled guilty to three counts of grand larceny, one count of burglary, and one count of possession of stolen property. He subsequently filed a motion for post-conviction relief contending, among other things, that he was subjected to double jeopardy because he was convicted of larceny and possession of stolen property for the same theft. The circuit court dismissed the PCR motion without an evidentiary hearing.

         ¶2. Although double-jeopardy claims are usually excepted from procedural bars due to their status as fundamental constitutional rights, Lowell's particular claim - that he committed a single larceny because he stole the two pieces of property at the same time and from the same person and place - seeks to go beyond the face of the indictments and the record of his guilty plea into what is essentially a factual defense to the allegations. Lowell's convictions are facially valid, and the double-jeopardy defense was waived by Lowell's voluntary, bargained-for guilty plea. We affirm the dismissal, with one exception: the State has conceded that the trial court lacked any basis in the record to order Lowell to pay $278.50 in restitution to the victim of a separate offense. On that point, we reverse and render.

         STANDARD OF REVIEW

         ¶3. 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).

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

         DISCUSSION

         1. Double Jeopardy

         ¶5. Lowell contends that Counts II and V of his indictment alleged the same offense for double-jeopardy purposes. Count II was grand larceny for the theft of a riding lawn mower owned by Sidney Imes. Count V was for possession of stolen property, a particularly valuable bicycle also owned by Sidney Imes. On appeal, Lowell contends that he stole both items at the same time and from the same place, and thus that their taking amounted to a single larceny. Under Mississippi law, a defendant cannot be charged in the same jurisdiction with both larceny for taking the property and possession of it as stolen property. See Miss. Code Ann. § 97-17-70(3)(a) (Rev. 2014); see also Davis v. State, 162 So.3d 805, 808 (ΒΆ9) (Miss. 2015) ("[W]hen a defendant can be charged with either stealing or receiving the same property, the State must opt to charge the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.