Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Joshua Allen v. State of Mississippi
Case Number: 2018-CA-00494-COA
Judge: Cory T. Wilson
Court: COURT OF APPEALS OF THE STATE OF MISSISSIPPI
Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
Defendant's Attorney: LANESHA L. SIMS
In March 2015, Allen was convicted of one count of armed robbery and one count of
conspiracy to commit armed robbery. Allen v. State, 200 So. 3d 1100, 1101 (∂1) (Miss. Ct.
App. 2016). The Rankin County Circuit Court sentenced Allen to thirty-five years for the
armed robbery conviction and five years for the conspiracy conviction, to be served
concurrently in the custody of the Mississippi Department of Corrections. Id.
∂3. Allen subsequently appealed his conviction and sentence to the Mississippi Supreme
Court. Id. On September 20, 2016, this Court affirmed Allenís convictions and sentences.
Id. at 1102 (∂4).
∂4. On June 21, 2017, Allen filed a motion for PCR and requested a new trial. In support
of his motion, Allen relied on an affidavit that his former co-defendant prepared and in which
the co-defendant claimed that she falsely testified against Allen at his trial. The circuit court
held an evidentiary hearing during which the co-defendant testified. Following the
evidentiary hearing, the circuit court found Allenís motion for PCR was not well taken and
denied the motion. Allen timely appealed, and the State subsequently filed a motion to
dismiss the appeal for a lack of jurisdiction.
STANDARD OF REVIEW
∂5. We apply a de novo standard of review to questions of law, legal conclusions, and
jurisdictional questions. Aladdin Constr. Co. v. John Hancock Life Ins. Co., 914 So. 2d 169,
174 (∂8) (Miss. 2005).
∂6. In its motion to dismiss Allenís appeal, the State asserts the circuit court lacked
jurisdiction over Allenís motion for PCR because Allen failed to obtain permission from the
Mississippi Supreme Court to proceed in the circuit court, as required by Mississippi Code
Annotated section 99-39-7 (Rev. 2007). The State asserts that because the circuit court
lacked jurisdiction, ď[this Court], as well, lacks jurisdiction to address Allenís specific
allegations and claims.Ē
∂7. ďA final judgment from which a timely notice of appeal was filed confers jurisdiction
upon an appellate court to determine whether the circuit courtís disposition was lawful.Ē
Forkner v. State, 227 So. 3d 404, 406 (∂6) (Miss. 2017) (citing Mississippi Rule of Appellate
Procedure 4(a)). ďThus, this Court ha[s] jurisdiction to determine whether the circuit courtís
disposition of [Allen]ís motion was lawful.Ē Id. Accordingly, the Stateís motion to dismiss
the appeal is denied.
∂8. However, we agree that the circuit court lacked jurisdiction to decide Allenís motion.
Pursuant to section 99-39-7:
Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion [for PCR] shall not be filed in the [circuit] court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi . . . and an order granted allowing the filing of such motion in the [circuit] court.
Here, this Court affirmed Allenís conviction and sentence on appeal. Allen, 200 So. 3d at
1102 (∂4). There is no evidence that Allen requested leave from the supreme court to
proceed in circuit court, as required by section 99-39-7. Because Allen did not have
permission to file his motion for PCR in the circuit court, the circuit court lacked jurisdiction
to consider the motion and should have dismissed the motion.
∂9. Allen asserts ďthe unambiguous language of [s]ection 99-39-7 refers to a conviction
and sentence appealed to the Supreme Court of Mississippi and there affirmed or the appeal
dismissed.Ē Allen contends that because his conviction and sentence were not affirmed by
the Mississippi Supreme Court, section 99-39-7 does not apply. We disagree.
∂10. In Forkner, Forkner appealed his conviction and sentence to the Mississippi Supreme
Court. Forkner, 227 So. 3d at 405 (∂3). The supreme court assigned the case to this Court,
which affirmed his conviction and sentence. Id. Forkner subsequently filed a motion for
PCR in the circuit court without first obtaining permission from the supreme court. Id. The
circuit court dismissed the motion for PCR and Forkner appealed. Id. at (∂5). On appeal, the
supreme court found that ď[b]ecause Forkner had not obtained permission to file a motion
for [PCR] in the circuit court, . . . the circuit court . . . lacked authority to adjudicate
Forknerís motion.Ē Id. at 405-06 (∂5).
∂11. Here, as in Forkner, Allen appealed his conviction and sentence to the supreme court,
which assigned his case to this Court. This Court affirmed Allenís conviction and sentence.
Like Forkner, Allen failed to obtain permission from the supreme court to file a motion for
PCR in the circuit court. As a result, the circuit court lacked authority to adjudicate Allenís
Outcome: We find the circuit court erred in failing to dismiss this case for a lack of jurisdiction.
Accordingly, the judgment of the Rankin County Circuit Court is vacated. We render
judgment, dismissing Allenís motion for PCR for his failure to obtain leave as required bysection 99-39-7.