Opinion
No. 2008-CA-00853-COA.
July 21, 2009.
TRIAL JUDGE: HON. LEE J. HOWARD, DATE OF JUDGMENT: 4/29/2008
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DISMISSED, DISPOSITION: APPEAL DISMISSED
ATTORNEY FOR APPELLANT: WILLIAM C. STENNETT
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS
BEFORE LEE, P.J., ISHEE AND ROBERTS, JJ.
FACTS AND PROCEDURAL HISTORY
¶ 1. Brooks Barnes was found guilty in the Circuit Court of Oktibbeha County of child fondling. He was sentenced to serve ten years in the custody of the Mississippi Department of Corrections and five years of post-release supervision. Barnes appealed, and his conviction and sentence were affirmed by this Court. See Barnes v. State, 906 So. 2d 16, 23 (¶ 27) (Miss.Ct.App. 2004). Barnes filed a motion for post-conviction relief with the trial court. After an evidentiary hearing, the trial court dismissed his motion.
¶ 2. Barnes now appeals the dismissal of his motion for post-conviction relief to this Court, asserting the following issues: (1) the expert witness should have been disqualified because his license was revoked after the trial for falsifying the results of other child abuse cases, and (2) he received ineffective assistance of counsel. Finding that Barnes's claims are not properly before this Court, we dismiss this appeal for lack of jurisdiction.
DISCUSSION
¶ 3. Mississippi Code Annotated section 99-39-7 (Rev. 2007) states in part:
Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion [for post-conviction relief] under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the justices of the supreme court of Mississippi, convened for said purpose either in term-time or in vacation, and an order granted allowing the filing of such motion in the trial court.
¶ 4. This Court has consistently held that if a conviction and sentence were affirmed on direct appeal, the statutory requirement to receive permission from the supreme court before seeking post-conviction relief at the trial court is "not merely advisory, but jurisdictional." Doss v. State, 757 So. 2d 1016, 1017 (¶ 6) (Miss.Ct.App. 2000).
¶ 5. Barnes's conviction and sentence were affirmed on direct appeal; therefore, Barnes was required to obtain permission from the supreme court before filing a motion for post-conviction relief. Since Barnes did not seek leave before filing his motion for post-conviction relief with the trial court, the trial court lacked jurisdiction to hear Barnes's motion. Likewise, this Court is also without jurisdiction to review this matter.
¶ 6. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.