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Flowers v. State

Court of Appeals of Mississippi

June 4, 2019

JUSTIN EARL FLOWERS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/11/2018

          HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. CHRISTOPHER LOUIS

          ATTORNEY FOR APPELLANT: JIM L. DAVIS III

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.

          BARNES, C.J.

         ¶1. On December 20, 2012, Justin Flowers was charged by a bill of information with committing grand larceny in violation of Mississippi Code Annotated section 97-17-41 (Rev. 2006). He entered a guilty plea on November 18, 2013. Withholding the acceptance of the guilty plea, adjudication of guilt, and imposition of a sentence pursuant to Mississippi Code Annotated section 99-15-26(1) (Supp. 2008), the Harrison County Circuit Court sentenced Flowers to two years of non-adjudicated probation pending successful completion of the probation conditions.[1]

         ¶2. On August 17, 2015, Flowers appeared before the circuit court on a petition for revocation of probation filed by the Mississippi Department of Corrections (MDOC). After Flowers confessed to the allegations in the petition, the court revoked his probation and sentenced him to ten years in the custody of the MDOC, with ten years suspended for successful completion of the Therapeutic Drug and Alcohol Program. The court retained jurisdiction under Mississippi Code Annotated section 47-7-47 (Rev. 2015). After Flowers completed the drug program, the circuit court resentenced Flowers to ten years in the custody of the MDOC, with ten years suspended and three years of post-release supervision on June 28, 2016. Flowers filed a motion to set aside or correct the judgment on August 21, 2017, which the court denied.[2] Flowers did not appeal this decision.

         ¶3. The circuit court revoked Flowers's post-release supervision on October 23, 2017, [3] and sentenced him to his original term of ten years in the custody of the MDOC, with credit for time served but with no portion of the sentenced suspended. On November 1, 2017, Flowers filed a motion for reconsideration, or in the alternative, a petition for post-conviction relief (PCR), contending that at the time of his adjudication of guilt, the sentence for grand larceny was five years, not ten.[4] On April 11, 2018, the circuit court entered an order, finding that it "now lacks jurisdiction over the matter" because Flowers's prior August 21, 2017 motion to reconsider was filed more than a year after the June 28, 2016 order, which "was well outside the term of court." With regard to Flowers's PCR motion, the court concluded that the argument regarding sentencing was without merit.

         ¶4. Flowers appeals the court's judgment. Although we agree that the circuit court lacked jurisdiction to reconsider or amend Flowers's June 28, 2016 sentence, the court had jurisdiction to consider Flowers's claim of an illegal sentence in his November 1, 2017 alternative PCR motion. Finding that the circuit court did not err in sentencing Flowers under the prior version of the statute, we affirm the denial of Flowers's motion.

         DISCUSSION

         ¶5. The State does not address the issue of the circuit court's jurisdiction, and Flowers does not challenge the court's determination that it lacked jurisdiction to reconsider his sentence as a separate and distinct issue, except to aver that he "file[d] his motion to reconsider the sentence within the appropriate ten (10) days." This issue of jurisdiction is further complicated by omissions in the record and factual inconsistencies and omissions in Flowers's brief.[5] Based on the court's findings of fact in its April 2018 order, we agree that the court did not have jurisdiction to reconsider its June 28, 2016 order, as Flowers's motion to reconsider was untimely filed.[6] However, Flowers's November 1, 2017 PCR motion was not time-barred, and the court had jurisdiction to consider the merits of his claim.[7]

         ¶6. In the PCR motion, Flowers argued that the circuit court erred in sentencing him to ten years under the prior version of section 97-17-41(1). At the time of the offense and the circuit court's non-adjudication order, section 97-17-41(1) provided:

Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of five Hundred Dollars ($500.00) or more, shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not exceeding ten (10) years; or shall be fined not more than Ten Thousand Dollars ($10, 000), or both. The total value of property taken and carried away ...

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