Decisions- COA- April 28, 2015

George Patrick McNatt, Jr. et al v  Leslie Turbeville tax sale – McNatt owned a ten-acre parcel of land in Rankin County. In 1993,  he began renting a lot to Turbeville for $100 a month and  Turbeville moved a mobile home onto the lot. . McNatt did not pay the 2001 ad valorem taxes on the property. In August 2002, Turbeville bought the property at the Rankin County Chancery Clerk’s tax sale. Since then, Turbeville has consistently paid the ad valorem taxes on the property. McNatt did not redeem the property, and Turbeville received a tax deed in August 2004. She filed a homestead exemption on the property during 2005. . In June 2009, McNatt quitclaimed his interest in the property to his first cousin, Finch.  Finch then sued Turbeville and sought to set aside the tax sale. The chancellor found that Turbeville treated the property as though it was her own for more than three years after she bought it at the tax sale, so Finch was statutorily barred from claiming that deficiencies in the tax sale rendered it void. As for McNatt’s quitclaim deed to Finch, the chancellor found that it was void. Consequently, the chancellor reasoned that Turbeville had a fee-simple title to the property, and Finch’s quitclaim deed was “null and void.” The COA affirms.

Stedman Gilmore v. State –  accessory after the fact – Gilmore was convicted in  Carroll County Circuit Court of one count of burglary of a dwelling and his sentenced to 12 years. Gilmore requested two instructions on his defense that he was an accessory after the fact. He insisted he merely picked up his friends after the burglary and did not know they were burglarizing the house.  However, he admitted to law enforcement that he served as the lookout.  Given the circumstances, the trial court did not abuse its discretion in refusing the instructions.

Curtis Davis Jr. v. State –  DNA as grounds for new trial after plea (always a better issue if you did not confess to the crime) –   Davis was indicted for the capital murder of his father-in-law, William McCuiston, and for possession of a firearm by a convicted felon. He pleaded guilty to manslaughter and possession of a firearm and was sentenced to 30 years in all.  A year later Davis’s counsel filed a PCR motion  asserting that Davis’s conviction should be vacated based on newly discovered DNA evidence. The DNA evidence was retrieved from swabs taken from a gun, phone, shoe, and various other objects found at the crime scene. The test results excluded Davis as a contributor to the samples. Davis argued he would have chosen to go to trial based on the lack of DNA evidence had he known the results prior to his plea, since the State had no other evidence linking him to the crime. He also argued his cousin, Betty Young, committed the murder, as evidenced by her knowledge of the gun’s location after the murder and her financial motive.  The trial court denied the motion, finding Davis’s arguments either had been waived or were without merit. First, the trial court noted that on August 5, 2010, prior to his plea, Davis had moved to compel the DNA test results.  The trial court found that because the results were available prior to his plea, they were not newly discovered evidence. The trial court further found there was no evidence the State suppressed the test results, and all arguments contained in the motion to compel were waived by Davis’s plea. Furthermore the trial court found that the absence of DNA evidence did not exonerate Davis while his confession and plea colloquy implicated him.  Davis did not appeal but a year later he filed a second PCR motion.  The trial court denied the motion as successive-writ barred. The COA affirms.

James Douglas Smith v. State time limits for filing pcr from plea (hint: 3 years) –  In 2009 Smith was charged with being over 18 and having sex with a female under 14.  He pleaded guilty and got 30 years.  In August  2013, Smith filed a PCR petition in the trial court that was dismissed as time barred.  On appeal, the COA examines Smith’s claims to see whether they fit an exception to the 3 year SOL. First, Smith “claims that his court-appointed attorney used “deception and fear” to coerce him into accepting the State’s plea offer, based upon a “pretense” that the State had DNA evidence and a written confession to the crime.” The plea colloquy shows that “the ADA represented that the State would be able to present a signed, written confession by Smith, as well as DNA evidence linking him to the victim.” Smith’s claim that he got an illegal sentence is also without merit. “The judge’s determination of Smith’s sentence was well within his statutorily defined discretion and did not exceed the statutory limits. Thus, Smith’s assertion that the sentence is tantamount to life imprisonment and is therefore unlawful is without merit.”

Derrick Newell v. Statedouble jeopardy – conspiracy versus substantive offense – Newell was convicted in 1998 for conspiracy to commit armed robbery.   Just before. Newell was acquitted of the crimes of armed robbery, aiding and abetting and accessory after the fact.  In 1998, he filed a pcr which was denied.   He then filed another pcr which the trial court also denied.  His argument is that the conspiracy charge was barred by double jeopardy.  The COA affirms on the general rule that the substantive charge and conspiracy are two distinct offenses.  “Conspiracy occurs ‘[i]f two . . . or more persons conspire . . . [t]o commit a crime[.]’ Miss. Code Ann. § 97-1-1(1)(a) (Rev. 2014). Again, the conversation relating to the future commission ofthe robbery and the actual robbery itself were two separate acts, and therefore, two separate findings of fact for which double jeopardy would not apply in theory.”

Mitchell P. Smith v. First Bank default judgment – The Ferrells lived next door to Smith.  In 2006, several of the Ferrells were injured when a fight started on Smith’s property. neighboring property owned by Mitchell P. Smith.  On April 26, 2007, the Ferrells filed a complaint for damages against Mitchell, Mitchell’s father, and several others. The Ferrells ended up getting a default judgment against the Smiths in 2011. On June 1, 2012, First Bank received a writ of garnishment on Mitchell’s account. Thereafter, the bank mistakenly told Mitchell that he could withdraw all of his money from his account. Mitchell acted on this information and withdrew all of his money from First Bank.  On August 23, 2012, Mitchell and Horace filed motions to set aside the judgment. The circuit court found “that both Mitchell and [Horace] have colorable defenses, and that had they defended these claims at trial, as it was their right to do, the outcome might have been substantially different.” However, after weighing the relevant factors, the circuit court ruled that the default judgment against Mitchell and Horace should stand. Their motion was denied. In addition, Mitchell was ordered to return the funds that he withdrew from First Bank. They appeal and the COA affirms.

Charles Bruton v. Allison Bruton –  time for filing notice of appeal – The Bruton’s were divorced  by a judgment entered on May 9, 2013. . By order dated May 22, 2013, Chuck was granted an extension, through May 31, 2013, to file a post-trial motion. On May 31, 2013, Chuck filed his motion for a new trial, amendment of the judgment, and/or clarification of the judgment. On July 22, 2013, the chancellor granted a clarification, as to the payment of school tuition, and denied the remainder of Chuck’s motion. On August 22, 2013, Chuck filed a motion for a stay of the judgment of divorce pending appeal.  On August 30, 2013, Chuck filed a notice of appeal.  On September 4, 2013, Chuck filed a motion in the trial court  for additional time to file a notice of appeal nunc pro tunc. The chancellor denied Chuck’s motion for a stay of the judgment of divorce pending appeal and then  denied Chuck’s motion for additional time to file a notice of appeal nunc pro tunc.  On November 1, 2013, Chuck filed a second notice of appeal appealing the judge’s order denying him additional time to appeal. The COA affirms.

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