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Duncan v. State

Court of Appeals of Mississippi

October 17, 2017

ROBERT K. DUNCAN A/K/A ROBERT DUNCAN A/K/A ROBERT KENNETH DUNCAN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/06/2015

         JACKSON 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.

         EN BANC.

          IRVING, P.J.

         ¶1. 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.

         FACTS

         ¶2. 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 post-release supervision.[1]

         ¶3. In August 2012, while out of prison on post-release supervision, Duncan was arrested in Neshoba County for burglary of a dwelling.[2] 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 MDOC.

         ¶4. 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.[3] 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. 1999)).

         ¶5. 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.

         ¶6. 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, ...


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