        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2012-CP-01485-COA

SHAWN ANTONIO JACKSON A/K/A SHAWN                                           APPELLANT
JACKSON A/K/A SHAWN A. JACKSON

v.

STATE OF MISSISSIPPI                                                          APPELLEE


DATE OF JUDGMENT:                          06/11/2013
TRIAL JUDGE:                               HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    SHAWN ANTONIO JACKSON (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   POST-CONVICTION-RELIEF MOTION
                                           DENIED
DISPOSITION:                               REVERSED AND REMANDED - 05/05/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES, CARLTON AND JAMES, JJ.

       BARNES, J., FOR THE COURT:

¶1.    Shawn Antonio Jackson pled guilty to several counts of transfer of a controlled

substance and possession with intent to distribute a controlled substance. He was originally

sentenced to twenty years to serve. This sentence was subsequently reduced to twelve years

to serve. The State convinced the circuit court that the court lacked jurisdiction to reduce

Jackson’s sentence and that Jackson’s only recourse was to seek the reduction through a post-

conviction-relief (PCR) motion. The circuit court then reinstated Jackson’s twenty-year

sentence, and Jackson filed the PCR motion.
¶2.    This motion was ignored for over eleven years until Jackson amended and/or

supplemented it with the specific argument that the circuit court had possessed jurisdiction

to reduce his sentence. Rather than address the merits of this argument, the State argued that

Jackson had not obtained permission to supplement his PCR motion and that it was untimely.

The circuit court agreed and denied the motion and supplemental motion on procedural

grounds. It is from this order that Jackson appeals.

¶3.    We find that the amended and/or supplemental motion raised an issue under the

intervening decision in Presley v. State, 792 So. 2d 950 (Miss. 2001), that should have been

considered on the merits. We remand for a determination of whether the circuit court’s

decision to reduce Jackson’s sentence to twelve years should be reinstated.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶4.    On March 30, 2001, Jackson pled guilty and was sentenced in the Harrison County

Circuit Court to twenty years to serve for transfer of a controlled substance and possession

with intent to distribute a controlled substance. That same day, the last day of that term of

court, Jackson moved to reduce his sentence and to carry the motion from term to term. The

circuit court granted the motion to carry the motion from term to term.

¶5.    On June 14, 2001, the Mississippi Supreme Court issued its opinion in Presley, 792

So. 2d at 953 (¶13), holding that a circuit court retains jurisdiction, after a term of court has

ended, to rule on motions filed during that term of court. Thereafter, on July 16, 2001, the

circuit court reduced Jackson’s sentence to twelve years to serve. The State moved to

reconsider and convinced the circuit court that the court lacked jurisdiction to reduce



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Jackson’s sentence, since the term of court had ended, and that Jackson’s only recourse was

to file a PCR motion.

¶6.      On July 27, 2001, the circuit court set aside the July 16 order and re-imposed

Jackson’s twenty-year sentence. Jackson then promptly filed a PCR motion on August 2,

2001. A motion for rehearing in Presley was denied, and the supreme court’s decision

became final on August 30, 2001.1 No action was taken on Jackson’s motion for over eleven

years.

¶7.      On September 10, 2012, Jackson amended and/or supplemented his post-conviction

motion and argued, for the first time, that the circuit court did have jurisdiction to reduce his

sentence. On June 11, 2013, the circuit court denied the motion. The circuit court declined

to address the merits of Jackson’s claim and adopted the State’s argument that Jackson had

failed to obtain permission to amend his post-conviction motion, and that it was time-barred

as it was not filed within three years of Jackson’s resentencing.

¶8.      Among Jackson’s arguments on appeal is the argument that Presley gave the circuit

court jurisdiction, after the term of court had expired, to rule on his motion, which was filed

during that term of court. The State now concedes on appeal that the circuit court had

jurisdiction to reduce Jackson’s sentence, but argues that this Court should ignore the merits

of Jackson’s claim and adopt the circuit court’s rationale that the motion is procedurally

barred.

                                        DISCUSSION

         1
          A timely filed motion for rehearing stays the supreme court mandate until
disposition of the motion. M.R.A.P. 41(a).

                                               3
¶9.    On review of a trial court’s rulings relating to a post-conviction motion, we review

findings of fact under the clearly erroneous standard and review conclusions of law de novo.

Purnell v. State, 126 So. 3d 949, 951 (¶4) (Miss. Ct. App. 2013).

¶10.   Contrary to the position it took in opposing the reduction of sentence in 2001, the

State now concedes that the circuit court had jurisdiction to reduce Jackson’s sentence. See

Presley, 792 So. 2d at 953 (¶13). In Presley, the Mississippi Supreme Court overruled prior

precedent and held that a circuit court retains jurisdiction, after a term of court ends, to rule

on motions filed during that term of court. Id. That is precisely what happened here.

Jackson’s motion to reduce his sentence was filed on March 30, 2001, the last day of the term

of court. That same day, the circuit court entered an order carrying the motion from term to

term. When it reduced Jackson’s sentence to twelve years on July 16, 2001, the circuit court

had the jurisdiction to do so.

¶11.   Although the State now concedes that Presley gave the circuit court the authority to

reduce Jackson’s sentence, the State argues that Jackson is procedurally barred from

obtaining this reduction because: (1) he did not obtain permission to amend his PCR motion

to make this argument as required by Mississippi Rule of Civil Procedure 15(d), and (2) his

amended PCR motion was not filed within three years as required by Mississippi Code

Annotated section 99-39-5(2) (Supp. 2014). We reject both of these contentions.

       1.     Permission to Amend

¶12.   After the State convinced the circuit court that Jackson’s only avenue to obtain a

reduction of sentence was to file a PCR motion, Jackson did so within six days of the order



                                               4
taking away his reduced sentence. After eleven years without a response, in 2012, Jackson

filed a pro se amended and/or supplemental motion to his PCR motion asking that his

reduced sentence be reinstated. While it is true that Jackson did not file a separate motion

requesting permission to file the amended or supplemental pleading, our supreme court has

held that where a prisoner is proceeding pro se, “his inartfully drafted pleadings will not be

held to defeat a meritorious complaint.” McCreary v. State, 582 So. 2d 425, 426 (Miss.

1991); see also Sanders v. State, 760 So. 2d 839, 840 (¶4) (Miss. Ct. App. 2000) (same).

Here, where the State was given the opportunity to respond to the pleading, we find that the

trial court abused its discretion in dismissing the pleading based upon the pro se prisoner’s

failure to include a separate motion for leave to amend. Rather, the trial court should have

analyzed the pleading to determine whether leave to amend should have been granted.

¶13.   Mississippi Rule of Civil Procedure 15(a) states leave to amend a pleading “shall be

freely given when justice so requires.” (Emphasis added.) Rule 15(d), however, states that

where the party is seeking to supplement his pleadings with “events which have happened

since the date of the pleading,” the court “may” grant the party’s motion “upon such terms

as are just.” (Emphasis added.) In Rule 15(a), the language is mandatory, while that of Rule

15(d) is discretionary. See Young v. Smith, 67 So. 3d 732, 739 (¶14) (Miss. 2011) (in

construing the Mississippi Rules of Civil Procedure, “may” is discretionary while “shall” is

considered mandatory). Analysis is complicated in this case as Jackson’s original PCR

motion was filed after the Presley opinion had been rendered but before the decision became

final. Jackson’s amended pleading, to the extent it raises the facts of the Presley opinion,



                                              5
would thus be analyzed under Rule 15(a). However, as the supreme court mandate in Presley

issued after Jackson had filed his PCR motion, Jackson’s pleading would be a supplemental

pleading analyzed under Rule 15(d) to the extent it discusses the effect of the Presley

decision.

¶14.   Regardless of whether Rule 15(a) or (d) is applied, under the unique circumstances

of this case and the timing of the Presley decision, we see no justice in refusing to allow

Jackson to amend and/or supplement his PCR motion to challenge the reinstated sentence

under Presley. Wright and Miller’s Federal Practice and Procedure, a leading treatise on

the comparable Federal Rules of Civil Procedure, states:

       Perhaps the most important factor listed by the Court for denying leave to
       amend is that the opposing party will be prejudiced if the movant is permitted
       to alter a pleading. Conversely, if the court is persuaded that no prejudice will
       accrue, the amendment should be allowed. Thus, the facts of each case must
       be examined to determine if the threat of prejudice is sufficient to justify
       denying leave to amend.

6 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1487, at 701 (3d

ed. 2000). Here, the State has not alleged any prejudice will result from allowing Jackson

to amend and/or supplement his PCR motion. Nothing has changed in the eleven years since

the original PCR motion was filed.

¶15.   Therefore, on these facts, we find the trial court abused its discretion in failing to grant

Jackson permission to file his amended (or supplemental) pleading.

       2.     Timeliness of the Claim

¶16.   Under Rule 15(c), if the pleading is amended, it relates back to the original, timely

PCR motion filed on August 2, 2001. See M.R.C.P. 15(c) (“Whenever the claim . . . asserted


                                                6
in the amended pleading arose out of the conduct, transaction, or occurrence set forth or

attempted to be set forth in the original pleading, the amendment relates back to the date of

the original pleading.”). However,

       Rule 15 does not indicate whether or under what circumstances a supplemental
       pleading will relate back to the date of the original pleading to avoid the effect
       of the governing statute of limitations. [Federal] Rule [of Civil Procedure]
       15(c), which provides generally for the relation back of amended pleadings,
       does not specifically refer to supplemental pleadings. Nor does Rule 15(d)
       make any mention of relation back; indeed, the Advisory Committee Note
       accompanying the 1963 amendment of [Federal] Rule 15(d) states that the
       Committee did not attempt to deal with the interrelationship between the
       statutes of limitations and supplemental pleadings.

6A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1508, at 274-

75 (3d ed. 2000) (emphasis added).

¶17.   Again, under the unusual circumstances of this case, it is a distinction without a

difference. If Jackson’s pleading is amended under Rule 15(a), the amended pleading relates

back to the original PCR motion and is timely under section 99-39-5(2). However, if

Jackson’s pleading is considered supplemented under Rule 15(d), the claim falls within an

exception to the three-year-limitation period of section 99-39-5(2). “Excepted from this

three-year statute of limitations are those cases in which the petitioner can demonstrate . . .

[t]hat there has been an intervening decision of the Supreme Court of . . . the State of

Mississippi . . . which would have actually adversely affected the outcome of his . . . sentence

. . . .” Miss. Code Ann. § 99-39-5(2)(a)(i).

¶18.   Presley became final on August 30, 2001, less than a month after Jackson’s reduced

sentence was vacated and he filed his original PCR motion, and years before the circuit



                                               7
court’s denial of his supplemental PCR motion. Therefore, under section 99-39-5(2)(a)(i),

it constitutes an intervening decision, making Jackson’s claim timely. See Foster v. State,

848 So. 2d 172, 175 (¶12) (Miss. 2003) (“We find that Atkins [v. Virginia, 536 U.S. 304

(2002),] is an intervening decision . . . , such that the procedural bars . . . of timeliness and

successive application, are not applicable . . . .”).

¶19.   Because the trial court ordered that the appellate record be limited to the pleadings

filed in the PCR proceedings, the present record does not contain the order reducing

Jackson’s sentence from twenty years to twelve years, or the reasoning upon which it was

based. Something convinced the circuit court to reduce Jackson’s sentence to twelve years.

Because of Presley, we now know that the reason for re-imposing the twenty-year sentence

was legally incorrect. We remand this case for the circuit court to consider, on the merits,

Jackson’s claim that his twelve-year sentence should be reinstated.

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.

    LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL, FAIR AND
JAMES, JJ., CONCUR. IRVING, P.J., AND CARLTON, J., CONCUR IN RESULT
ONLY.




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