        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CP-00903-COA




JOHN JOSEPH DEDEAUX A/K/A JOHN                                            APPELLANT
JOSEPH DEDEAUX, SR. A/K/A JOHN J.
DEDEAUX A/K/A JOHN J. DEDEAUX, SR.

v.

STATE OF MISSISSIPPI                                                        APPELLEE

DATE OF JUDGMENT:                         04/30/2013
TRIAL JUDGE:                              HON. JOHN C. GARGIULO
COURT FROM WHICH APPEALED:                HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JOHN JOSEPH DEDEAUX SR. (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: SCOTT STUART
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                  DENIED MOTION FOR POST-
                                          CONVICTION RELIEF
DISPOSITION:                              AFFIRMED – 12/02/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., FAIR AND JAMES, JJ.

       IRVING, P.J., FOR THE COURT:

¶1.    John Joseph Dedeaux appeals the judgment of the Hancock County Circuit Court

denying his fourth motion for post-conviction collateral relief (PCR), arguing that (1) the

circuit court erred in convicting him of a crime for which he had not been indicted and had

not waived indictment, and (2) he had received ineffective assistance of counsel.

¶2.    Finding no error, we affirm.

                                         FACTS
¶3.    On July 25, 1990, Dedeaux was indicted for burglary of the Bay Senior High School,

located in Bay St. Louis, Mississippi. On November 8, 1990, Dedeaux filed a plea petition,

stating that he wished to plead guilty and attesting that the basis for his desire to plead guilty

was that he “was in possession of the property stolen from the high school.” On November

13, 1990, the circuit court accepted Dedeaux’s guilty plea and sentenced him to five years

in the custody of the Mississippi Department of Corrections (MDOC), to run concurrently

to his sentence for a prior felony conviction.1 On March 15, 1994, Dedeaux was convicted

of transfer of a controlled substance, his third felony conviction, and was sentenced to thirty

years in custody of the MDOC pursuant to Mississippi Code Annotated section 99-19-81

(Supp. 2014).2

¶4.    After filing three PCR motions in the circuit court challenging his 1990 receiving-

stolen-property conviction, each of which the circuit court denied, Dedeaux filed a PCR

motion in the Mississippi Supreme Court challenging the same conviction.




       1
         Before pleading guilty to receiving stolen property, Dedeaux was convicted of
another felony crime in Hancock County Circuit Court cause number 7086.
       2
           Section 99-19-81 provides as follows:

       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately
       brought and arising out of separate incidents at different times and who shall
       have been sentenced to separate terms of one (1) year or more in any state
       and/or federal penal institution, whether in this state or elsewhere, shall be
       sentenced to the maximum term of imprisonment prescribed for such felony,
       and such sentence shall not be reduced or suspended nor shall such person be
       eligible for parole or probation.

                                                2
¶5.        By order filed on February 21, 2013, the supreme court dismissed Dedeaux’s PCR

motion without prejudice to his filing the motion in the circuit court. On February 21, 2013,

Dedeaux filed his fourth PCR motion in the circuit court, arguing that (1) the motion was not

time-barred despite the provisions of Mississippi Code Annotated section 99-39-5 (Supp.

2014)3 because his fundamental right had been violated; (2) the circuit court lacked subject-

matter jurisdiction to convict him of receiving stolen property because he had not been

indicted for that crime and had not waived indictment therefor, and (3) he had received

ineffective assistance of counsel because his trial counsel had advised him to plead guilty.

¶6.    By order filed May 2, 2013, the circuit court denied Dedeaux’s PCR motion, finding

that (1) the motion was time-barred under section 99-39-5(2); and (2) the motion lacked merit

because “the lesser charge of receiving stolen property arose from the same set of operative

facts as the greater charge of burglary.” Dedeaux appealed the May 2, 2013 order on May

24, 2013. On June 5, 2013, Dedeaux filed a post-judgment motion in the circuit court,

arguing that the circuit court erred in failing to set aside his conviction for receiving stolen




       3
           Section 99-39-5 states, in relevant part, as follows:

       A motion for relief under this article shall be made within three (3) years after
       the time in which the petitioner's direct appeal is ruled upon by the Supreme
       Court of Mississippi or, in case no appeal is taken, within three (3) years after
       the time for taking an appeal from the judgment of conviction or sentence has
       expired, or in case of a guilty plea, within three (3) years after entry of the
       judgment of conviction.

Miss. Code Ann. § 99-39-5(2).

                                                3
property.4 By order filed June 11, 2013, the circuit court set aside its May 2, 2013 order and

instructed the State to file a response to Dedeaux’s PCR motion and post-trial motion.

¶7.    After the State filed its response, the circuit court, again, denied the fourth PCR

motion on December 4, 2013, finding that (1) the issues presented in the motion lacked merit,

(2) the motion was time-barred, and (3) the motion was successive-writ barred. As stated,

on appeal, Dedeaux argues that (1) the circuit court erred in convicting him of a crime for

which he had not been indicted and had not waived indictment; and (2) he received

ineffective assistance of counsel.

                                        DISCUSSION

¶8.    Preliminarily, we note that the circuit court’s May 2, 2013 order remained an

appealable judgment even after the circuit court set that order aside. The Mississippi

Supreme Court has found that “[f]iling a notice of appeal transfers jurisdiction from the

circuit court to [the] appellate court, thereby removing the circuit court’s authority to amend,

modify, or reconsider its judgment.” Shinn v. State, 74 So. 3d 901, 905 (¶13) (Miss. Ct. App.

2011) (citation omitted). Therefore, the circuit court lacked jurisdiction to set aside its May

2, 2013 order.

¶9.    We also note that Dedeaux’s PCR motion is time-barred under section 99-39-5. The

circuit court entered its judgment of conviction on November 13, 1990, and Dedeaux filed

the PCR motion at issue more than twenty-three years after that judgment was entered.



       4
           Dedeaux styled his post-judgment motion as a “Motion of Objections.”

                                               4
Dedeaux argues that the issues presented in his PCR motion arise from an illegal sentence

and that the motion is, therefore, excepted from the time-bar. We agree that “the right to be

free from an illegal sentence is a fundamental right not subject to the time-bar” found in

section 99-39-5(2). Hughes v. State, 106 So. 3d 836, 840 (¶10) (Miss. Ct. App. 2012) (citing

Kennedy v. State, 732 So. 2d 184, 186-87 (¶¶7-8) (Miss. 1999)). However, as discussed

later, this case does not involve an illegal sentence or a violation of Deadeaux’s fundamental

right.

¶10.     Dedeaux’s PCR motion is also successive-writ barred under Mississippi Code

Annotated section 99-39-23 (Supp. 2014).5 Before filing the PCR motion at issue, Dedeaux

had filed three prior PCR motions, the first of which was dismissed by the circuit court, and

Dedeaux did not appeal. Dedeaux v. State, 834 So. 2d 712, 713 (¶3) (Miss. Ct. App. 2002).

The circuit court denied the second and third PCR motions as successive writs. Id. at (¶2).

This Court affirmed those denials on appeal. Id. at 712 (¶4-6). Likewise, the PCR motion

now before this Court constitutes a successive writ. See Miss. Code Ann. § 99-39-23(6).

Notwithstanding, we briefly address Dedeaux’s claim that he received an illegal sentence

because, as stated, if that is the case, his PCR motion would not be subject to the procedural


         5
             Section 99-39-23 states, in relevant part, as follows:

         [An] order . . . dismissing the petitioner's motion or otherwise denying
         relief under this article is a final judgment and shall be conclusive until
         reversed. It shall be a bar to a second or successive motion under this
         article.

Miss. Code Ann. § 99-39-23(6).

                                                  5
bar.

¶11.   Dedeaux argues that the circuit court erred in accepting his guilty plea to the crime

of receiving stolen property because the circuit court lacked subject-matter jurisdiction in that

he had not been indicted for that crime. He insists that because the crime of receiving stolen

property is not a lesser-included offense of the crime of burglary, the State was required to

indict him for the crime of receiving stolen property before the circuit court could accept his

plea of guilty.

¶12.   In Green v. State, 884 So. 2d 733, 737 (¶¶11-12) (Miss. 2004) (citations omitted), the

Mississippi Supreme Court stated, “A lesser included offense requires that the elements of

the greater offense contain the elements of the lesser offense [while] a lesser non-included

offense applies where there is evidentiary support that a defendant is guilty of a lesser charge

arising from the same nucleus of operative facts.”

¶13.   In Jefferson v. State, 556 So. 2d 1016 (Miss. 1989), a case similar to the one now

before this Court, the defendant was initially indicted for burglary of an automobile

belonging to a Walter Boswell. Id. at 1017. The defendant was later indicted, in a separate

case, for burglary of a 1980 Lincoln vehicle also belonging to Boswell. Id. The defendant

later appeared before the circuit court with his attorney and announced that he wished to

withdraw his previous plea of not guilty and enter a plea of guilty to grand larceny in both

cases. Id. at 1018. The circuit court accepted both pleas, and the defendant was convicted

of grand larceny in both cases. Id. He was later convicted of the crime of burglary of a

business, and he was sentenced as a habitual offender. Id. at 1017. On appeal, the defendant

                                               6
argued that because he had not been indicted for grand larceny before being convicted, the

two judgments of conviction could not be used to enhance his sentence as a habitual

offender. Id. at 1018. The Mississippi Supreme Court found that the defendant’s argument

had no merit because he had given “a counseled waiver” of his right to be indicted for grand

larceny. Id. at 1018-19.

¶14.   We find Jefferson persuasive. Here, Dedeaux argues that the circuit court lacked

subject-matter jurisdiction because he had not been indicted on the lesser offense. In

Jefferson, our supreme court spoke directly to the issue of a circuit’s court jurisdiction of a

lesser unindicted offense: “Once an indictment has been served on [a] defendant, a court

having subject[-]matter jurisdiction is empowered to proceed. A subsequent event such as

a guilty plea to a lesser related offense in no way ousts the court of personal jurisdiction.”

Id. at 1021. Additionally, in Young v. State, 797 So. 2d 239, 243 (¶9) (Miss. 2001), the

Mississippi Supreme Court found that because the defendant “was indicted under the

jurisdiction of the circuit court, and he voluntarily entered his pleas of guilty, he [had] waived

the right to be indicted for the crimes [to which he entered a plea of guilty].”

¶15.   Based on Jefferson and Young, the circuit court had both subject-matter jurisdiction

and personal jurisdiction to accept Dedeaux’s plea of guilty to receiving stolen property and

sentence him accordingly. Therefore, Dedeaux’s assertion that his 1990 sentence was illegal

because the circuit court lacked jurisdiction is without merit. Consequently, Dedeaux’s PCR

motion is procedurally barred. Additionally, since Dedeaux has presented the issue of the

lack of circuit-court jurisdiction in three previous PCR motions, consideration of the issue

                                                7
is also barred by the doctrine of res judicata. Accordingly, we affirm the circuit court’s

denial of Dedeaux’s fourth PCR motion.

¶16. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

   LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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