Decisions – Miss.Ct.App. – Nov. 4, 2014 – part 1

Abdullah Alsaquini v. State –  no pcr from non adjudication – “Abdullah Qasem Alsahquni received five years of nonadjudicated probation following a guilty plea. Shortly after his charges were dismissed, he filed two separate motions for post-conviction relief (PCR). The trial court dismissed both motions, stating it had no jurisdiction. We agree, finding that “nonadjudication” of guilt resulting in dismissal of charges is not a “conviction” or “sentence” within the purview of the Mississippi Uniform Post-Conviction Relief Act. Therefore, Alsahquni lacks standing to make any claims under Mississippi Code Annotated section 99-39-5 (Supp. 2014). The judgment of the trial court is affirmed.”

Quincy Fox v. State404(b); 2d motion for new trial after notice of appeal filed –    Fox was tried for kidnapping, armed carjacking, and count of armed robbery, found guilty and sentenced, as an habitual offender, to life imprisonment  for each count to run concurrently.   Fox filed a motion for a new trial which  was  denied. He then filed a notice of appeal but two weeks later filed a second motion for a new trial claiming he had newly discovered evidence that Jessie Jones, a witness for the State (and Fox’s accomplice)  received a more lenient sentence than what he testified to at trial.  The circuit court denied the motion and  Fox filed the present appeal wherein he  argues that the circuit court erred in failing to grant a mistrial when, “in response to the State’s question as to why Fox’s name came up during interrogation, Jones testified that the police brought up Fox’s name because he was “on papers” for two other crimes.”  The trial court admonished the jury to ignore the statement then polled the jury to see that they would.   The Court of Appeals finds that this was not error because it was not purposefully elicited and the jury agreed it could disregard it.  As for the denial of the second motion for new trial, the judge did not err  in denying it. “It is well settled that “the filing of the notice of appeal perfected the appeal and divested the lower court of jurisdiction.” Estes v. State, 782 So. 2d 1244, 1248 (¶2) (Miss. Ct. App. 2000) (citing Martin v. State, 732 So. 2d 847, 851 (Miss. 1998)). Because the circuit court lacked jurisdiction to consider Fox’s second motion for a new trial, we also lack jurisdiction to consider the motion.”

Betty Thomas v. Miss. Dept. of Employment Security –  denial of unemployment for alleged refusal to perform tasks –   Thomas was working for the  Cleveland School District as an administrative assistant from  2008 until  2013 when she was notified her  contract would not be renewed.  She was denied unemployment benefits  due to “disqualifying misconduct.”  At the hearing Thomas’ supervisor testified that she had received three written warnings.  The final incident occurred  Hill asked Thomas to complete paperwork, but Thomas refused saying it was not part of her job description. The Court of Appeals affirms “While there was conflicting testimony, the Board of Review is entitled to accept the testimony of one witness over the other.”  “In this case, the Board of Review accepted Hill’s and Jones’s testimony that Thomas repeatedly refused to complete assigned tasks and found Thomas was discharged for misconduct. This Court is not permitted “to second guess how
the Board resolves conflicting testimony.”

Michael Jackson v. Rosie Jackson –  divorce for habitual cruelty –  Michael appealed from an order of divorce on the grounds of habitual cruel and inhumane treatment.  He also challenges the division of marital property and the award of lump sum alimony.  Rosie’s claimed that she and Michael “had not been together sexually since 1999”.  In 2008 she got a call from one of Michael’s male friends  asking her “Will you please tell your husband to leave me alone?”  That same year, Rosie said she  was approached by one of Michael’s former students who informed her that Michael had sexually molested him twenty-six
years earlier when he was ten and  attending the same church as the Jacksons. And the Jacksons’ daughter testified that in 2008 she participated in a three-way phone  conversation with Michael and another man, unbeknownst to Michael, where Michael solicited the man for oral sex.  At trial, Michael denied all sexual allegations regarding homosexuality and child molestation.  Rosie testified that she confronted Michael and he denied the allegations but after that “the atmosphere in the home became very bad.”  He  started coming home late, bringing men into the home, and cutting off the phone and electricity. She also claimed4 that he intimidated her, bullied her, and talked cruelly to her.   Rosie testified that she was traumatized by the information she learned about Michael and began to experiencing problems with her blood sugar and blood pressure.  The Miss.Ct. of Appeals  affirms. “We find that Rosie’s testimony, coupled with the corroborating testimony of both Flowers and James, was sufficient alone to support that Michael’s conduct was cruel and inhuman.”

Christopher McNulty v. Stateamending indictment – Christopher McNulty was convicted of the sale of at least one-tenth but less than two grams of cocaine and  sentenced, as a habitual offender, to thirty years.  McNulty was charged after a controlled buy.   McNulty and the State reached a deal where McNulty would plead to the lesser included of unlawful possession of more than 1/10 but less than 2 grams and, in doing so, filed a motion to amend the indictment to reflect that McNulty was charged with the lesser. Befpre the plea was accomplished, the State learned McNulty had  a prior and was serving probation for car burglary.  It revoked the plea deal.  The state withdrew the amendment and approximately two weeks before trial asked the court to amend the indictment to reflect McNulty’s habitual status.  On appeal, he argues that there was no substantive motion or order to amend relating back to the original indictment. The Court of Appeals finds no error.  “The circuit court’s decision to withdraw the amended indictment did not materially alter the facts or the defense of McNulty’s case as it stood with the original indictment. As such, we find that McNulty’s conviction was proper. Further, it is clear from the record that McNulty was afforded due process of law and given fair notice of the nature and cause of the accusation. McNulty’s issues with both the jury’s verdict and his sentence are without merit.”

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