We find no error in the circuit court doing so, as we find no authority for the proposition that Tran’s statutory non-compliance on this point constitutes a jurisdictional defect. Cf. Keith v. State, 999 So. 2d 383, 386 (¶5) (Miss. Ct. App. 2008) (addressing PCR movant’s claims on the merits despite movant filing his PCR motion "under the original criminal cause numbers to which he pled guilty" rather than filing an original civil action).
However, we find that he failed to prove that there was "a reasonable probability that, but for counsel's errors , [he] would not have pleaded guilty and would have insisted on going to trial." Keith v. State , 999 So.2d 383, 389–90 (¶ 17) (Miss. Ct. App. 2008) (emphasis added) (internal citations and quotations omitted). As previously discussed, Patane was aware of the rights he was giving up and the effect that his guilty plea could potentially have on his eligibility for parole, yet he chose to plead guilty anyway.
“However, the fact that the requisite affidavits are missing does not preclude a trial court from examining a [PCR motion] and ruling on its merits.” Keith v. State, 999 So.2d 383, 387 (¶ 7) (Miss.Ct.App.2008). “To the contrary, the trial court is required to examine ‘[t]he original motion, together with all files, records, transcripts[,] and correspondence relating to the judgment under attack....’ ” Id. (quoting Miss.Code Ann. § 99–39–11(1) (Rev.2007)).
”); Smith v. State, 106 So.3d 877, 881 (¶ 11) (Miss.Ct.App.2013) (“[T]he State is under no obligation to prosecute under the statute with the lesser penalty. It may choose to prosecute under either, and so long as the choice is clear and unequivocal the defendant has no right to complain.”); Keith v. State, 999 So.2d 383, 392 (¶ 26) (Miss.Ct.App.2008) ( “When a defendant's actions constitute a crime under more than one statute, the State is not obligated to pursue criminal charges under the statute with the lesser penalty, but may choose any applicable statute so long as its choice is clear.”). ¶ 23.
"); Smith v. State, 106 So. 3d 877, 881 (¶11) (Miss. Ct. App. 2013) ("[T]he State is under no obligation to prosecute under the statute with the lesser penalty. It may choose to prosecute under either, and so long as the choice is clear and unequivocal the defendant has no right to complain."); Keith v. State, 999 So. 2d 383, 392 (¶26) (Miss. Ct. App. 2008) ("When a defendant's actions constitute a crime under more than one statute, the State is not obligated to pursue criminal charges under the statute with the lesser penalty, but may choose any applicable statute so long as its choice is clear."). ¶23. Nevertheless, a defendant enjoys "an absolute right to have the jury instructed on lesser included offenses if the evidence supports such an instruction."