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Gunn v. State

Court of Appeals of Mississippi

June 5, 2018

ELIAS GUNN A/K/A ELIAS SCOTT GUNN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/24/2017

          MADISON COUNTY CIRCUIT COURT, HON. WILLIAM E. CHAPMAN III JUDGE.

          ATTORNEY FOR APPELLANT: ELIAS GUNN (PRO SE).

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER.

          BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.

          CARLTON, J.

         ¶1. Elias Gunn was arrested and indicted for possession of cocaine while he was on probation for armed robbery. The State petitioned to revoke his probation, listing Gunn's cocaine-possession indictment as a violation of the terms of Gunn's probation. Gunn filed a motion for postconviction relief (PCR) in the Madison County Circuit Court, seeking to have his probation reinstated based upon alleged defects and errors occurring at his revocation hearing. The circuit court found that this was Gunn's second PCR motion challenging the same probation-revocation decision and dismissed Gunn's PCR motion as a successive writ.

         ¶2. On appeal, Gunn seeks reversal of the circuit court's dismissal of his second PCR motion, asserting that he was denied due process at his revocation hearing because he was not provided with the evidence relied upon to revoke his probation. Gunn further asserts that the cocaine-possession indictment against him was an insufficient basis for revoking his probation.

         ¶3. We find no error in the circuit court's dismissal of Gunn's second PCR motion as a successive writ, and we further find, based upon our review of the record and the applicable law, that Gunn has raised no error affecting his fundamental constitutional rights that would serve as an exception to the successive-writ procedural bar. We therefore affirm the circuit court's dismissal of Gunn's second PCR motion.

         FACTS AND PROCEDURAL HISTORY

         ¶4. On November 16, 2001, Elias Gunn pleaded guilty to armed robbery. After accepting Gunn's guilty plea, the Madison County Circuit Court sentenced Gunn to serve a 20-year sentence in the custody of the Mississippi Department of Corrections (MDOC), with the last eight years suspended on conditions specified in the Judgment of Conviction and Sentence Instanter, and with five years of probation to begin at the expiration of the unsuspended portion of the sentence.

         ¶5. On May 4, 2015, while he was on probation, Gunn was arrested for possession of cocaine in Hinds County, Mississippi, and was indicted on that charge on February 26, 2016. On March 29, 2016, the MDOC probation department filed a petition for revocation based on that indictment. The record contains the petition for revocation, which was acknowledged and signed by Gunn on April 7, 2016.

         ¶6. A revocation hearing was held on May 16, 2016. Gunn was represented by counsel. Gunn's counsel also set for hearing Gunn's motion for disclosure of evidence seeking an order for the State to disclose its evidence against Gunn concerning the cocaine-possession charge, which was the basis for the State's petition for revocation. After hearing argument on the motion for disclosure of evidence, the circuit court proceeded with the revocation hearing.

         ¶7. The State's witness was Gunn's probation officer, Officer Rico Mazique, who testified that he was supervising Gunn when he was arrested for possession of cocaine on May 4, 2015. The hearing transcript further reflects that Officer Mazique filed his petition for revocation after he found out about Gunn's February 2016 indictment on the ...


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