There is one really interesting split opinion in the Mississippi Court of Appeals yesterday, Randolph v. State. The split is about the issue of procedural bar and waiver in criminal cases. The appeal is a pro se post-conviction petition (note that a pro se litigant drew four votes in dissent!) filed by Robert Stanley Rowland. In 1979 he plead guilty to robbery and capital murder for which the underlying felony was robbery. To convict him of both the crime and the included crime violated double jeopardy (although no Mississippi case had held that at the time), and so he filed a pro se petition asking to set aside the robbery convictions as double jeopardy.
The question, then is whether this petition was waived, or whether the right is a fundamental one that cannot be waived. To quote from the King dissent (which is joined by Barnes, Ishee, and Carlton):
The Mississippi Supreme Court has held that where it is necessary to protect fundamental rights, the procedural bar may not apply to a motion for post-conviction relief. Sneed v. State, 722 So. 2d 1255, 1257 (¶11) (Miss. 1998). “The right to be free from an illegal sentence has been found to be fundamental.” Id. A claim that the defendant is serving an illegal sentence is not subject to the time bar “because errors affecting a fundamental constitutional right are excepted from the time bar.” Caviness v. State, 1 So. 3d 917, 919 (¶9) (Miss. Ct. App. 2008) (quoting Miller v. State, 879 So. 2d 1050, 1051 (¶4) (Miss. Ct. App. 2004)).
The Roberts majority opinion does not focus on whether the double jeopardy rights are fundamental; instead, its focus is on the degree to which Rowland’s guilty plea shows that he waived any rights he might have had, and that this waiver justifies holding that his peitition is in turned waived.
I’d like to see some debate and discussion about the (mis)use of procedural bar.
On the decision list, there is a split opinion in what looks to be a domestic case (Pearson) and the others are unanimous. The first two (Owens and Lacey) are dismissals of post conviction appeals. There’s also a unanimous domestic case (Palculiet) and a civil case of some sort (Reed v. D&D Drilling).
Anyone want to discuss these?
Here are prior threads with comments about Court of Appeals cases: Here are the prior threads: May 5th, May 12th, May 19th, May 26th thread, June 2nd.
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