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Lafoon v. State

Court of Appeals of Mississippi

November 20, 2018

KEP LAFOON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/04/2017

          MARSHALL COUNTY CIRCUIT COURT HON. ANDREW K. HOWORTH TRIAL JUDGE

          ATTORNEY FOR APPELLANT: KEP LAFOON (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN

          BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.

          IRVING, P.J.

         ¶1. Kep Lafoon pleaded guilty to first-degree murder, and the Marshall County Circuit Court sentenced him as a habitual offender[1] to life imprisonment without eligibility for parole or early release. Lafoon filed a petition for post-conviction collateral relief (PCR), which the circuit court dismissed as time-barred. This Court affirmed the dismissal.[2] Lafoon later filed a second PCR petition, [3] asserting that the circuit court violated his constitutional right against double jeopardy. The circuit court denied this second petition. Feeling aggrieved, Lafoon now appeals. We find no error; therefore, we affirm.

         FACTS

         ¶2. On October 16, 2002, Lafoon was charged by criminal information with murder as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015). He pleaded guilty that same day and was sentenced to life imprisonment without eligibility for parole or probation. On November 1, 2002, the circuit court amended its judgment and sentenced Lafoon as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) to life imprisonment without eligibility for parole or probation.

         ¶3. On June 20, 2013, Lafoon filed his first PCR petition. The circuit court held that the petition was time-barred and dismissed the petition. Lafoon then appealed to this Court, and we affirmed. On August 25, 2017, Lafoon filed a second PCR petition, alleging that the circuit court's amended judgment on November 1, 2002, was a violation of his constitutional right against double jeopardy. On November 29, 2017, the circuit court denied Lafoon's second PCR petition and held that it was time-barred, successive, and without merit. Lafoon timely appealed.

         DISCUSSION

         ¶4. When this Court reviews PCR petitions, it will only disturb the circuit court's factual findings if they are clearly erroneous. Johnston v. State, 172 So.3d 756, 758 (¶3) (Miss. Ct. App. 2012). However, this Court will review questions of law under a de novo standard of review. Id. Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides that, in the case of a guilty plea, a PCR petition shall be made within three years after entry of judgment of conviction. An untimely petition may be excepted if there has been an intervening decision made by the Mississippi Supreme Court or the United States Supreme Court, new evidence has been discovered which was not available at trial, or the petitioner is being detained despite his sentence expiring. Id.

         ¶5. Lafoon pleaded guilty on October 16, 2002, and the circuit court entered its initial judgment of conviction on that day. The circuit court subsequently entered its amended judgment on November 1, 2002. Lafoon filed the PCR petition at issue in this appeal on August 25, 2017, clearly outside of the three-year statute of limitations provided in section 99-39-5. Lafoon has failed to demonstrate that any of the exceptions set forth in section 99-39-5 apply. Thus, we affirm the circuit court's decision that Lafoon's PCR petition is time-barred.

         ¶6. Likewise, we affirm the circuit court's decision that Lafoon's petition is barred as successive. Mississippi Code Annotated section 99-39-27(9) (Rev. 2015) states in pertinent part that "[t]he dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article." Here, Lafoon filed his first PCR petition on June 20, 2013. It was dismissed as time-barred by the circuit ...


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