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Page v. State

Supreme Court of Mississippi

March 12, 2019

TOMMIE LEE PAGE A/K/A TOMMIE PAGE Petitioner
v.
STATE OF MISSISSIPPI Respondent

          EN BANC ORDER

          MICHAEL K. RANDOLPH CHIEF JUSTICE

         Now before the en banc Court is Tommie Lee Page's Application for Leave to Proceed in the Trial Court.

         Page was convicted of aggravated assault and sentenced as a habitual offender to life in prison. Page v. State, 843 So.2d 96, 97 (Miss. Ct. App. 2003). The Court of Appeals affirmed, and the mandate issued on May 6, 2003. Id.

         Since then, Page has filed multiple applications for leave to seek post-conviction relief in the trial court. The order denying his last application said that application was his third. Order, Page v. State, 2013-M-01645 (Miss. Aug. 15, 2018). Upon further review, however, he has filed a total of seven: Order, Page v. State, 2013-M-01645 (Miss. Aug. 15, 2018); Order, Page v. State, 2013-M-01645 (Miss. Dec. 17, 2015); Order, Page v. State, 2013-M-01645 (Miss. Nov. 13, 2013); Order, Page v. State, 2012-M-00840 (Miss. July 5, 2012); Order, Page v. State, 2007-M-00432 (Miss. Feb. 18, 2009); Order, Page v. State, 2007-M-00432 (Miss. Apr. 18, 2007); Order, Page v. State, 2004-M-00448 (Miss. July 19, 2004).

         In this application, Page raises the following claims:

(1) His sentence is illegal because (a) he was erroneously sentenced for a crime that was neither tried nor proved; (b) the indictment was fatally defective for erroneously charging the crime of aggravated assault; and (c) the indictment was defective, and his due-process rights were violated, because the word "did" was omitted.
(2) The trial court erred by allowing the multi-count indictment to proceed when it was not permitted under Mississippi Code Section 99-7-2 (Rev. 2015).
(3) The habitual-offender portion of his sentence is illegal.
(4) His conviction and sentence are illegal because the State failed to prove aggravated assault beyond a reasonable doubt.

         After due consideration, we find the following.

         First, although Page alleges illegal sentence in his first claim, his arguments are that the indictment and the jury instructions were defective. Such claims do not meet any recognized exception to the time, waiver, and successive-writ bars. Chapman v. State, 167 So.3d 1170, 1174-75 (Miss. 2015); Smith v. State, 149 So.3d 1027, 1031-32 (Miss. 2014), overruled on other grounds by Pitchford v. State, 240 So.3d 1061 (Miss. 2017); Bell v. State, 123 So.3d 924, 925 (Miss. 2013); Rowland v. State, 98 So.3d 1032, 1035-36 (Miss. 2012), overruled on other grounds by Carson v. State, 212 So.3d 22 (Miss. 2016); see also Bevill v. State, 669 So.2d 14, 17 (Miss. 1996); Brown v. State, 187 So.3d 667, 671 (Miss. Ct. App. 2016). And even if they did meet a recognized exception, Page's claims lack any arguable basis to warrant relief from the bars. Means v. State, 43 So.3d 438, 442 (Miss. 2010).

         Second, Page's claim challenging the multi-count indictment also does not meet any recognized exception to the procedural bars. Chapman, 167 So.3d at 1174-75; Smith, 149 So.3d at 1031-32; Bell, 123 So.3d at 925; Rowland, 98 So.3d at 1035-36; see also Bevill, 669 So.2d at 17; Brown, 187 So.3d at 671. And even if such claim did meet a recognized exception, his claim lacks any arguable basis to warrant relief from the bars. Means, 43 So.3d at 442.

         Third, Page's challenge to the legality of the habitual-offender portion of his sentence constitutes a recognized exception to the procedural bars. Rowland, 98 So.3d at 1035-36. To warrant waiving the bars, however, the claim must have some arguable basis. Means, 43 So.3d at 442. We find that Page's claim does not.

         Finally, Page's claim that the State failed to prove aggravated assault beyond a reasonable doubt is barred by the doctrine of res judicata. Miss. Code. Ann. § 99-39-21(2) (Rev. 2015). That issue was raised and decided on direct appeal. Page, 843 So.2d at 98 ("[Page] contends that the State ...


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