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Smith v. State

Court of Appeals of Mississippi

October 9, 2018

JEROLD WAYNE SMITH A/K/A JEROLD SMITH A/K/A GERALD WAYNE SMITH A/K/A JEROLD W. SMITH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/24/2017

          COURT FROM WHICH APPEALED JACKSON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. DALE HARKEY

          ATTORNEY FOR APPELLANT: JEROLD WAYNE SMITH (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS

          BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

          CARLTON, J.,

         ¶1. Jerold Wayne Smith appeals the Jackson County Circuit Court's denial of his motion for postconviction relief (PCR). On appeal, Smith argues that: (1) his sentence has expired, (2) he was subjected to double jeopardy, and (3) he was denied effective counsel.

         ¶2. After our review, we find that Smith's double jeopardy and ineffective assistance of counsel claims are procedurally barred. We also find that Smith's expired sentence claim is without merit and also time-barred. We therefore affirm the trial court's denial of Smith's PCR motion.

         FACTS

         ¶3. In September of 1985, Smith was convicted of burglary of a business in Harrison County and sentenced to serve seven years as a habitual offender. In March of 1986, Smith was convicted of possession of a schedule II controlled substance in Harrison County, and the trial court sentenced him to life without eligibility for parole. The supreme court affirmed Smith's conviction of possession of a controlled substance and sentence to life imprisonment on direct appeal. Smith v. State, 527 So.2d 660, 665 (Miss. 1988). Then, in June of 1986, Smith pled guilty to armed robbery in Jackson County. The trial court sentenced Smith to serve a term of ten years, with the sentence to run concurrently with Smith's seven year sentence for burglary of a business and consecutive to Smith's life sentence for possession of a controlled substance.

         ¶4. On October 7, 2016, Smith filed a PCR motion requesting that the trial court enter an order finding that his ten-year sentence for armed robbery had expired.[1] On February 9, 2017, Smith filed a motion for leave to file additional and supplemental pleadings in support of his PCR motion. That same day, and despite failing to receive permission from the trial court, Smith also filed his supplemental pleadings in support of his PCR motion, arguing: (1) that he was subjected to double jeopardy because "[he] was tried, convicted, and sentenced for both armed robbery and possessing the proceeds of that robbery," and (2) "it should be inferred that [he] was denied ineffective assistance of counsel" based on the alleged double jeopardy violation.

         ¶5. On May 24, 2017, the trial court entered an order denying Smith's PCR motion. The trial court found no merit to Smith's claim that his sentence for his armed robbery conviction had expired and explained as follows:

Part of Smith's sentence was to be served concurrently with Harrison County Cause Number 20, 493 [(burglary of a business)]. After the sentence in Harrison County Cause Number 20, 493 expired, Smith had three (3) years remaining on . . . [his armed robbery] sentence[, ] [w]hich was to run consecutively with his sentence in Harrison County Cause Number 20, 705 [(possession of a controlled substance)]. The remaining three (3) years would not begin to run until after completion of his life sentence in Harrison County Cause Number 20, 705. As such his sentence has not expired[.]

         ¶6. On June 14, 2017, Smith filed his notice of appeal.[2] On July 14, 2017, Smith filed a motion for reconsideration, in which he also asked the trial court to rule on the double jeopardy claim and ineffective assistance of counsel claim raised in his February 9, 2017 supplemental pleadings. On October 11, 2017, the trial court entered an order denying Smith's motion for reconsideration. The trial court held that "[i]t plainly appears from the [m]otion that ...


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