                        IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 97-CA-00153-SCT
NEVIN WHETSTONE a/k/a NEVIN KERR
WHETSTONE
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                            12/14/84
TRIAL JUDGE:                                 HON. FRANK ALLISON RUSSELL
COURT FROM WHICH APPEALED:                   LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      PRO SE
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL

                                             BY: WAYNE SNUGGS
DISTRICT ATTORNEY:                           SAM M. REEDY
NATURE OF THE CASE:                          CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                 AFFIRMED - 10/9/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                              10/30/97




     BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

     SMITH, JUSTICE, FOR THE COURT:




On February 9, 1984, appellant Nevin Whetstone was indicted for capital murder, i.e., murder while
engaged in the commission of the crime of rape pursuant to Miss. Code Ann. § 97-3-19(2)(e) (1972).
The Honorable Fred Wicker accepted Whetstone's guilty plea in the Circuit Court of Lee County,
Mississippi, on December 14, 1984, and sentenced Whetstone to life imprisonment. On October 3,
1996, Whetstone filed a Motion to Dismiss Indictment and Vacate Conviction and Sentence in the
Circuit Court of Lee County pursuant to the Post Conviction Collateral Relief Act. This motion was
dismissed by the Honorable Frank Allison Russell, on January 27, 1997. Whetstone appeals pro se
and raises the following issues:

     I. INDICTMENT DEFECTIVE AND VOID BECAUSE IT DID NOT CONCLUDE
     WITH THE PHRASE "AGAINST THE PEACE AND DIGNITY OF THE STATE OF
     MISSISSIPPI."

     II. INDICTMENT DEFECTIVE AND VOID BECAUSE IT DID NOT STATE THE
     JUDICIAL DISTRICT IN WHICH THE INDICTMENT WAS BROUGHT.

     III. INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL FAILED TO
     PROTECT APPELLANT'S SUBSTANTIVE RIGHTS UNDER THE MISSISSIPPI
     CONSTITUTION.

                                         LEGAL ANALYSIS

     I. INDICTMENT DEFECTIVE AND VOID BECAUSE IT DID NOT CONCLUDE
     WITH THE PHRASE "AGAINST THE PEACE AND DIGNITY OF THE STATE OF
     MISSISSIPPI."

Whetstone argues that his indictment was defective and void because the Grand Jury foreman's
signature came after the phrase "against the peace and dignity of the State of Mississippi." Thus,
Whetstone contends that his indictment violates Mississippi constitution and court rules mandates
because it concludes with the grand jury foreman's signature and not with the mandatory phrase.
Miss. Const. § 169; URCCC 7.06 (1997). Whetstone cites McNeal v. State, 658 So. 2d 1345 (Miss.
1995) in support of his argument.

Whetstone entered his guilty plea on December 14, 1984 and his Motion for Post Conviction Relief
was filed on October 3, 1996, eleven years and nine months later. Accordingly, the State maintains
that since Whetstone's claims were not filed within three (3) years after conviction, they are time
barred under Miss. Code Ann. § 99-39-5(2) (Supp. 1997). In rebuttal, however, Whetstone contends
that this issue is an exception to the time bar under Miss Code Ann. § 99-39-5(2) in that his argument
is based on the "intervening decisions" of McNeal and Brandau. See McNeal v. State, 658 So. 2d
1345 (Miss. 1995)(holding habitual offender portion on second page of indictment invalid since
mandatory phrase "against the peace and dignity of the State of Mississippi" only followed charging
language on first page); Brandau v. State, 662 So. 2d 1051 (Miss. 1995) (alleging indictment
defective for failure to conclude with mandatory phrase). Specifically, Whetstone states that this is
the first time the issue regarding the mandatory phrase has been before this Court in seventy-one (71)
years. Therefore, he argues that this is "an intervening decision . . . which would have actually
adversely affected the outcome of the conviction or sentence . . . ." Miss. Code Ann. § 99-39-5(2).

Whetstone's reliance on the "intervening decision" exception is understandable given that his claim is
time barred in the absence of this exception. However, Whetstone's assertion that either McNeal or
Brandau is an intervening decision that would qualify for this exception is without merit. This Court
has held that an intervening decision exception "applies only to those decisions that create new
intervening rules, rights, or claims that did not exist at the time of the prisoner's conviction or during
the three (3) year period circumscribed by the statute of limitations." Patterson v. State, 594 So. 2d
606, 608 (Miss. 1992) (emphasis in original). The inmate in Patterson relied upon a decision which
enforced the mandates of the pre-existing Mississippi criminal court rules. The Court "simply
recognized and applied a pre-existing rule, a rule that had been in existence for at least four years
when Patterson entered his 1983 plea of guilty . . . ." Id. at 608. Similarly, McNeal applied the pre-
existing Mississippi Constitution as well as a pre-existing rule of law. Moreover, McNeal reiterated
this Court's previous holdings in Love v. State, 8 So. 465 (Miss. 1891) and Clingan v. State, 100 So.
185 (Miss. 1924) regarding the mandatory phrase provisions in the Mississippi Constitution of 1890.
As in Patterson, Whetstone is merely asking this Court to enforce a constitutional provision and a
rule of law that was available to him on the day he entered his guilty plea and throughout the three
(3) year statutory time limitation. Whetstone's statement that this is the first time this issue has been
before the Court in seventy-one (71) years is not determinative of an intervening decision, rather the
appropriate focus is when the rule came into existence. Because Whetstone's claim was not filed
within the three (3) year statutory time limit and because it does not meet the requirements of an
intervening decision, it is time barred.

Nevertheless, even assuming the time bar was not applicable, this claim was waived when he failed to
raise this issue at trial. See Miss. Code Ann. § 99-7-21 (1994) (indicating objections to facially
defective indictment must be by demur or before venire facias in capital cases). Additionally,
Whetstone waived any defect in the indictment by pleading guilty. See Brooks v. State, 573 So. 2d
1350 (Miss. 1990). However, Whetstone cites Smith v. State, 477 So. 2d 191, 195 (Miss. 1985) in
support of his contention that the procedural bar is inapplicable since "[t]his Court has previously
held that errors affecting fundamental rights are exceptions to the rule that questions not raised in the
trial court cannot be raised for the first time on appeal." Since the language is mandated by the
constitution, Whetstone alleges that Claim I affects a fundamental right and thus operates as an
exception. However, this same argument was expounded in Brandau, wherein this Court held that
"failure to properly draft the wording of the indictment" did not affect a "fundamental right."
Brandau v. State, 662 So. 2d 1051, 1054 (Miss. 1995). "The mere fact that a procedural
requirement is located in the Constitution does not necessarily elevate it to the status of a
'fundamental right.'" Id. Therefore, Whetstone's claim is procedurally waived as well as time barred.

However, regardless of the time bar and procedural waiver, there is no merit to the argument that the
mandatory phrase must follow the grand jury foreman's signature. In his argument, Whetstone
focuses on the definition of "conclude" being "to bring to an end." But he ignores the definition of
"indictment" and its usage within the legal community. Indictment is defined by various authorities as
follows:

     "[A] formal written statement framed by a prosecuting authority and found by a jury (as a
     grand jury) charging a person with an offense. Webster's Collegiate Dictionary 592 (10th ed.
     1994)

     (emphasis added).

     "An accusation(1) in writing found and presented by a grand jury, . . . ." Black's Law Dictionary
     772 (6th ed. 1990)

(emphasis added).

These definitions reveal that "indictment" refers to the charging language contained in the form and
not the actual form itself. It is true that within the legal community, the term "indictment" is used to
refer to the charging language as well as the form in which the indictment is contained. However, in
applying the constitutional mandate in a logical manner, the term indictment as used in § 169 of the
Mississippi Constitution refers to the "charging language" as opposed to the "form." Accordingly, the
constitutional provision is satisfied when the charging language contained within the indictment form
concludes with the mandatory phrase.

Whetstone also utilizes the court rules in support of his argument. Rule 7.06 specifies seven (7)
elements that must be included in the indictment form. URCCC 7.06 (1997). Whetstone contends
that this rule mandates that the grand jury foreman's signature (the 6th element listed) must proceed
the words "against the peace and dignity of the state" (the 7th element listed). However, the rule does
not specify that the elements must appear in the order listed, therefore, there is no merit to this
argument.

In summary, Whetstone's argument that his indictment was defective because it concluded with the
grand jury foreman's signature is time barred, procedurally waived and without merit.

     II. INDICTMENT DEFECTIVE AND VOID BECAUSE IT DID NOT STATE THE
     JUDICIAL DISTRICT IN WHICH THE INDICTMENT WAS BROUGHT.

Whetstone contends that the court lacked jurisdiction because "the indictment does not even cite the
judicial district in which the indictment is brought as required by Rule 7.06(4) of the Uniform Rules
of Circuit Court Practice and the Sixth (6th) Amendment of the United States Constitution." He is
correct in stating "[a]n indictment must give petitioner notice of the place where the offense is alleged
to have [sic] committed by properly charging venue." Whetstone cites Evans v. State, 144 Miss. 1,
108 So. 725 (1926) in support of his contention that "[a]n indictment like the present, which simply
stated the crime was committed in the (Lee) County without designating the district does not charge
venue of the crime as required by the Constitution and Rule 7.06(4)."

Whetstone's argument regarding venue is likewise time barred for the same reasons propounded in
the discussion of Claim I. Additionally, both Claims I and II were procedurally waived when
Whetstone failed to raise this issue at trial. However, Whetstone contends that his claim is a
jurisdictional matter and thus not subject to waiver. Specifically, Whetstone alleges that "the Circuit
Court did not have subject matter jurisdiction" due to the failure to specify the judicial district. See
Patterson v. State, 594 So. 2d 606, 609 (Miss. 1992) (holding jurisdictional matters may be raised
for the first time on appeal). Nonetheless, a discussion of the merits illustrates that the indictment was
not defective for not indicating the judicial district. The fourth element listed in Rule 7.06 is "[t]he
county and judicial district in which the indictment is brought." URCCC 7.06 (1997). Whetstone's
indictment form heading indicates "The State of Mississippi, Lee County, Circuit Court, February
Term, A.D., 1984, Lee County." Even though the indictment indicated Lee County Circuit Court,
Whetstone alleges that it was fatally defective because it did not also indicate the judicial district.
However, this argument disregards the fact that Lee County does not have separate judicial districts.
Mississippi statute regarding jurisdiction and venue provides that "local jurisdiction of all offenses,
unless otherwise provided by law, shall be in the county where committed." Miss. Code Ann. § 99-
11-3 (1994) (emphasis added). The legislature has only provided otherwise in regards to jurisdiction
of crimes committed in particular districts in Harrison County or Hinds County. See Miss. Code Ann.
§ 99-11-37 (1994). Accordingly, Whetstone's indictment was not defective.

     III. INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL FAILED TO
     PROTECT APPELLANT'S SUBSTANTIVE RIGHTS UNDER THE MISSISSIPPI
     CONSTITUTION.

Whetstone's allegations in this area are based on counsel's failure to point out the defects in the
indictment as discussed in Claims I and II. Whetstone asserts that this failure "prejudiced him to plead
guilty to capital murder under the defective and void indictment." Given the fact that there is no merit
to either Claim, there is no basis for Whetstone's allegation of ineffective assistance of counsel.

                                            CONCLUSION

Whetstone's claims of defective indictment are time barred, procedurally barred and without merit.
Whetstone's claims are time barred since they were not filed within the three (3) year statutory time
limit, the requirements of an intervening decision were not met, and a fundamental right was not
affected. Furthermore, Whetstone's claims are procedurally barred because Whetstone did not raise
these claims at the trial court level and the exception for jurisdictional defects does not apply.
Moreover, Whetstone's claims are without merit since the constitutional mandate requiring the
language "against the peace and dignity of the state" is satisfied when the charging language
contained within the indictment conludes with this phrase. Additionally, the indictment was not
defective for failing to state the judicial district inasmuch as Lee County only has one (1) judicial
district.

Whetstone's ineffective assistance of counsel claim is premised on his attorney's failure to point out
the defective indictment. Since there is no merit to either claim regarding defects, there is no basis for
Whetstone's allegation of ineffective assistance of counsel. Accordingly, the trial court's dismissal of
Whetstone's motion for Post Conviction Collateral Relief is affirmed.

DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS AND
MILLS, JJ., CONCUR.




1. An accusation is "a formal charge against a person, . . . ." Black's Law Dictionary 22 (6th ed.
1990) (emphasis added).
