ROBERT K. DUNCAN A/K/A ROBERT DUNCAN A/K/A ROBERT KENNETH DUNCAN APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/06/2015
COUNTY CIRCUIT COURT, HON. KATHY KING JACKSON.
ATTORNEY FOR APPELLANT: ROBERT K. DUNCAN (PRO SE).
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LAURA HOGAN TEDDER.
Robert K. Duncan appeals from the judgment of the Jackson
County Circuit Court, denying his motion for post-conviction
relief (PCR). Because Duncan's appeal was not timely
filed, we dismiss for lack of jurisdiction.
In February 2000, Duncan pleaded guilty to armed robbery in
violation of Mississippi Code Annotated section 97-3-79 (Rev.
2014). The circuit court sentenced him to fifteen years in
the custody of the Mississippi Department of Corrections
(MDOC), with eight years to serve without parole or early
release, and the final seven years to be served on
In August 2012, while out of prison on post-release
supervision, Duncan was arrested in Neshoba County for
burglary of a dwelling. The State filed an order of revocation,
charging that Duncan had violated several conditions of his
probation. On October 3, 2012, the circuit court held a
revocation hearing, wherein Duncan admitted before the court
that he had committed the crimes set forth in the order of
revocation, and waived his right to require the State to
prove the allegations set forth in the order of revocation.
Consequently, the court revoked Duncan's post-release
supervision and required him to serve the remaining seven
years of his sentence for armed robbery in the custody of the
On October 2, 2014, Duncan filed a PCR petition, in which he
argued that (1) his post-release supervision was unlawfully
revoked; (2) there existed evidence of material facts not
previously presented requiring vacation of his sentence; (3)
his plea was made involuntarily; and (4) his sentence was
wrongly revoked on the basis of nonpayment of
fines. On March 6, 2015, the circuit court denied
Duncan's motion on the basis that he, in open court,
admitted that he had violated the terms of his post-release
supervision and had waived his right to require the State to
prove the charges against him. The court held that Duncan had
"more likely than not" violated the terms of his
probation, pursuant to Fairley v. State, 138 So.3d
280, 282 (¶4) (Miss. Ct. App. 2014) (quoting Younger
v. State, 749 So.2d 219, 222 (¶12) (Miss. Ct. App.
The record indicates that on July 5, 2015, Duncan wrote a
letter to the circuit-court clerk, stating that he had not
heard anything regarding the PCR motion he had filed on
October 2, 2014, and inquiring about its status. The record
further indicates that on July 10, 2015, Duncan received a
copy of the circuit court's order denying his PCR motion,
which the circuit clerk sent him following receipt of his
July 5, 2015 letter. On August 18, 2015, Duncan signed a
motion for leave to file an out-of-time appeal, asserting
that he had not received notice of the denial of his PCR
motion until July 10, 2015. This motion was not filed with
the Jackson County Circuit Clerk until September 8, 2015. A
notice of appeal was also filed on September 8, 2015.
The circuit court entered an order on October 7, 2015,
granting Duncan's motion for leave to file an out-of-time
appeal. In its order, the circuit court mistakenly provided
that Duncan "was not mailed a copy of the order denying
his [PCR] [m]otion until approximately September 8, 2015,
" which contrasts with Duncan's assertion that he
received notice of his PCR motion's denial on July 10,
2015. The circuit court reopened the time for Duncan to file
an appeal, ...