                                 IN THE COURT OF APPEALS
                                          OF THE
                                   STATE OF MISSISSIPPI
                                         NO. 1999-CP-01376-COA
JIMMY L. JONES                                                                                  APPELLANT
v.
STATE OF MISSISSIPPI                                                                              APPELLEE

DATE OF TRIAL COURT JUDGMENT:                   07/21/1999
TRIAL JUDGE:                                    HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                      HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         PRO SE
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL
                                                BY: SCOTT STUART
DISTRICT ATTORNEY:                              EDWARD J. PETERS
NATURE OF THE CASE:                             CIVIL - POST CONVICTION RELIEF
TRIAL COURT DISPOSITION:                        DENIAL OF POST-CONVICTION RELIEF
DISPOSITION:                                    AFFIRMED - 02/05/2002
MOTION FOR REHEARING FILED:                     2/25/2002; denied 4/23/2002
CERTIORARI FILED:
MANDATE ISSUED:                                 5/14/2002

      BEFORE KING, P.J., IRVING, AND BRANTLEY, JJ.

      KING, P.J., FOR THE COURT:

¶1. Jimmy L. Jones has appealed from an order denying post-conviction relief entered in the Circuit Court
of the First Judicial District of Hinds County, Mississippi. Jones pled guilty to four charges of forcible rape
in 1971. Jones was sentenced to four life sentences. On appeal, Jones raises the following issues:

      I. Whether he was denied his constitutional rights and denied due process in sentencing.

      II. Whether he is time barred and procedurally barred where his constitutional rights are
      involved.

      III. Whether he was denied a complete hearing on his guilty plea by the trial judge.

      IV. Whether the trial court erred in sentencing Jones to life imprisonment without a jury's
      recommendation.

      V. Whether he was denied his civil rights as a black man.

                                                    FACTS
¶2. In his brief, Jones stated that he was arrested for receiving stolen property and entered guilty pleas to
four charges of rape in 1971. Jones claimed that he was threatened and physically beaten for four months.
He stated that he entered the guilty pleas to save his life. Jones also claimed that he has no recollection of
having a complete guilty plea hearing before a judge.

¶3. In January 1986, Jones filed a motion for post-conviction relief. This motion stated that Jones
discovered that his life sentences for the rape charges were excessive and in violation of the rape statute. In
February 1986, that motion was denied.

¶4. On April 30, 1999, Jones filed a motion for post-conviction relief. By order dated July 21, 1999, the
trial court dismissed the motion. The order stated that the court had previously decided all matters
presented by the petition and that the previous rulings were considered res judicata and dismissed the
petition without prejudice.

¶5. On March 21, 2000, the Mississippi Supreme Court entered an order remanding Jones' motion to the
Hinds County Circuit Court and ordered that his motion be filed as a notice of appeal to be deemed filed
on August 20, 1999.

                                        ISSUES AND ANALYSIS

                                                       I.

      Whether Jones was denied his constitutional rights and denied due process in sentencing.

                                                      II.

      Whether Jones is time barred and procedurally barred where his constitutional rights are
      involved.

                                                      III.

      Whether Jones was denied a complete hearing on his guilty plea by the trial judge.

                                                      IV.

      Whether the trial court erred in sentencing Jones to life imprisonment without a jury's
      recommendation.

                                                      V.

      Whether Jones was denied his civil rights as a black man.

¶6. "When reviewing a lower court's decision to deny a petition for post-conviction relief this Court will not
disturb the trial court's factual findings unless they are found to be clearly erroneous. However, where
questions of law are raised the applicable standard of review is de novo." Pace v. State, 770 So. 2d 1052
(¶4) (Miss. Ct. App. 2000).

¶7. Jones pled guilty in 1971, prior to the enactment of Mississippi Code Annotated Section 99-39-5(2)
(Rev. 2000) on April 17, 1984. The act created a three-year time period, beginning April 17, 1984, within
which relief must be sought for convictions prior to its enactment. Odom v. State, 483 So. 2d 343, 344
(Miss. 1986). The evidence shows that Jones filed a petition in January 1986. Therefore, Jones did file a
petition within the statutory time period. However, Jones' petition for post-conviction relief was denied.
After reviewing the record, the trial judge determined that an evidentiary hearing was not required and the
motion should be dismissed.

¶8. The Post-Conviction Relief Act, Mississippi Code Annotated Section 99-39-5(2) (Rev. 2000),
requires that requests for post-conviction relief be filed within three years after entry of judgment of
conviction. The exceptions to this three year limitation are: (1) cases in which the prisoner can show that
there has been an intervening decision of the Mississippi or United States Supreme Court which would
adversely affect the outcome of his conviction, (2) cases in which he has new evidence, not discoverable at
trial, that would have caused a different result in conviction or sentence, or (3) cases in which the prisoner
claims his sentence has expired or his probation, parole or conditional release has unlawfully been revoked.
Miss. Code Ann. §99-39-5(2) (Rev. 2000).

¶9. In April 1999, Jones filed another petition which contends that he falls within one of the exceptions to
the three-year time period. He argues that based on Luckett v. State, 582 So. 2d 428, 430 (Miss. 1991),
he should be excepted from the three-year limitation since he is claiming that a denial of due process in
sentencing occurred and this error affected his fundamental constitutional rights. Jones claims that he should
not have received life sentences which were not given by a jury. Jones relies on Lee v. State, 322 So. 2d
751, 753 (Miss. 1975), which states that in cases where the jury does not fix the penalty at life
imprisonment, the judge must sentence the defendant to a definite term reasonably expected to be less than
life. The amended statute allows the court to fix the penalty of imprisonment in the state penitentiary for any
term as within its discretion, where a jury has not recommended sentencing.

¶10. At the time Jones pled guilty, the forcible rape statute in 1971, Section 2358 Mississippi Code of
1942, as amended, read in part, as follows:

      Every person who shall be convicted of rape, either by carnally and unlawfully knowing a female child
      under the age of twelve years, or by forcibly ravishing any female of the age of twelve years and
      upward, or who shall have been convicted of having carnal knowledge of any female above the age of
      twelve years without her consent, by administering to her any substance or liquid which shall produce
      such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, shall
      suffer death, unless the jury shall fix the imprisonment in the penitentiary for life, as it may do in case of
      murder.

This is the applicable statute which should have been followed at that time. However, Jones contends that
based on Luckett, he should not have been sentenced to life imprisonment unless the jury fixed the penalty
at life imprisonment. Luckett challenged his 1980 convictions based on Mississippi Code Annotated
Section 97-3-65 (Supp. 1980), which was not in effect when Jones was sentenced in 1971. Pursuant to
Mississippi Code Annotated Section 99-19-1 (Rev. 2000):

      No statutory change of any law affecting a crime or its punishment or the collection of a penalty shall
      affect or defeat the prosecution of any crime committed prior to its enactment, or the collection of any
      penalty, whether such prosecution be instituted before or after such enactment; and all laws defining a
      crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation
      for the purpose of providing punishment for crimes committed under them, and for collection of such
     penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in
     such statutes.

Therefore, Jones' contention that the trial judge had no authority to impose such a sentence absent the
recommendation of a jury is incorrect. Bullock v. Harpole, 233 Miss. 486, 494, 102 So. 2d 687, 690
(1958).

¶11. The evidence in the record shows that Jones' claims were denied as res judicata pursuant to
Mississippi Code Annotated Section 99-39-27(9) (Supp. 1990) which states:

     (9) The dismissal or denial of an application under this section is a final judgment and shall be a bar to
     a second or successive application under this chapter. Excepted from this prohibition is an application
     filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict's
     supervening insanity prior to the execution of a sentence of death. A dismissal or denial of an
     application relating to insanity under Section 99-19-57(2), Mississippi Code of 1972, shall be res
     judicata on the issue and shall likewise bar any second or successive applications on the issue.
     Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either
     that there has been an intervening decision of the Supreme Court of either the State of Mississippi or
     the United States which would have actually adversely affected the outcome of his conviction or
     sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such
     nature that it would be practically conclusive that had such been introduced at trial it would have
     caused a different result in the conviction or sentence. Likewise exempted are those cases in which the
     prisoner claims that his sentence has expired or his probation, parole or conditional release has been
     unlawfully revoked.

¶12. Having determined that Jones' petition is time barred and procedurally barred, the issues presented will
not be addressed. The action of the trial court in denying his motion for post-conviction relief is affirmed.

¶13. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF
HINDS COUNTY DISMISSING MOTION FOR POST-CONVICTION RELIEF IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

     McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
     CHANDLER AND BRANTLEY, JJ., CONCUR.
