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Smith v. State

Court of Appeals of Mississippi

December 11, 2018

DONALD KEITH SMITH A/K/A DONALD SMITH A/K/A DONALD K. SMITH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/06/2017

          JACKSON COUNTY CIRCUIT COURT HON. ROBERT P. KREBS TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DONALD KEITH SMITH (PRO SE)

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

          BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

          TINDELL, J.

         ¶1. Donald Keith Smith filed a 2017 post-conviction relief (PCR) motion challenging his 2016 guilty plea and conviction in Jackson County Circuit Court, cause number 2008-10, 145, for the charges of attempted kidnapping, armed carjacking, and fleeing and eluding a police officer. The circuit court dismissed portions of Smith's 2017 PCR motion after determining those portions to be successive-writ barred.[1] Because Smith's 2017 PCR motion was his first one following his 2016 guilty plea, it was not successive. We therefore must reverse and remand.

         FACTS

         ¶2. On September 2, 2007, Smith entered into Dr. Evalyn Jerkins's car in Jackson County, Mississippi. While using a switchblade knife approximately five-inches long, he grabbed Dr. Jerkins by the arm and threatened Dr. Jerkins and another woman, Rebecca Alleneder. Smith held the women at knifepoint in Dr. Jerkins's car. He drove the car away and thereafter failed to stop the car when requested to do so by the police. Fortunately for Dr. Jerkins, she was able to jump out of the car as Smith backed out of a Walgreens parking lot.

         ¶3. On March 28, 2008, Smith was indicted under cause number 2008-10, 145 on two counts of kidnapping, one count of carjacking while armed with a knife, and one count of felonious evasion of a police officer (2008 indictment). After numerous trial continuances, on June 3, 2009, Smith filed a petition to plead guilty to one count of the kidnapping of Dr. Jerkins, one count of armed carjacking, and one count of felonious evasion. As part of the plea agreement, the State agreed to nolle prosequi the remaining count of kidnapping Alleneder.

         ¶4. On December 14, 2011, Smith filed his first pro se PCR motion attacking his armed- carjacking conviction and the 2008 indictment. The circuit court found no merit to Smith's claims and denied his 2011 PCR motion. On January 30, 2012, Smith appealed that decision. On February 22, 2012, Smith filed a second pro se PCR motion. In Smith's 2012 PCR motion, he argued there was no factual basis for his armed-carjacking charge and that he was entitled to a court-ordered mental evaluation prior to pleading guilty on the charges stemming from his September 2007 crimes. In denying Smith's 2012 PCR motion, the circuit court noted that it previously ruled on the issues surrounding his armed-carjacking conviction, and it denied Smith's motion as a successive-writ. Miss. Code Ann. § 99-39-23(6) (Rev. 2007). The circuit court also found no error in its failure to provide Smith with a mental evaluation prior to accepting his guilty plea. Smith appealed the circuit court's denial of his 2012 PCR motion.

         ¶5. In October 2013, this Court consolidated Smith's appeals, found Smith's armed- carjacking arguments to be without merit, and affirmed the circuit court's judgment. However, the supreme court reversed the judgments of this Court and the circuit court, and sent the case back to the circuit court for an evidentiary hearing on Smith's claim that a mental evaluation regarding his competency was required. Smith v. State, 149 So.3d 1027 (¶20) (Miss. 2014), overruled by Pitchford v. State, 240 So.3d 1061, 1035 (¶19) (Miss. 2017).

         ¶6. In June 2015, again before the circuit court, Smith filed a motion to quash Count III of the 2008 indictment charging him with carjacking. Smith's motion challenged the sufficiency of the indictment insomuch as the State was attempting to convict him of "armed carjacking" when the indictment itself labeled the crime as "carjacking." In response, the State filed a motion to amend Count III of the 2008 indictment to reflect the charge of "armed carjacking" under Mississippi Code Annotated section 97-3-117(2). The circuit court denied Smith's motion to quash, granted the State's motion, and amended Count III of the 2008 indictment to set out the crime of armed carjacking. It was also at this time, and for reasons unknown, the State re-indicted Smith for the same charges in a new multi-count indictment in cause number 2015-10, 430(2).

         ¶7. Although Smith had been re-indicted in cause number 2015-10, 430(2), he agreed to plead guilty under the amended 2008 indictment. In December 2016, Smith entered a new guilty plea to attempted kidnapping, armed carjacking, and fleeing and eluding a police officer as set forth in cause number 2008-10, 145. The circuit court accepted Smith's guilty plea to the 2008 amended indictment and on that same day ...


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