IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-CP-01706-COA GARY DEWAYNE ALLEN A/K/A GARY ALLEN A/K/A GARY D. ALLEN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/17/2016 TRIAL JUDGE: HON. DALE HARKEY COURT FROM W HICH APPEALED: GEORGE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: GARY DEW AYNE ALLEN (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 05/15/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ. CARLTON, J., FOR THE COURT: ¶1. A George County jury convicted Gary Deway n e Allen of sexual battery a nd sentenced him to serve twenty -f

ive y ears i n the custody of the Mississippi Departm ent of Corrections (MDOC). Allen a

ppealed his c o n viction and sentence in 2006. This Court a f f i rm ed his conviction and sentence in Allen v. State , 960 So. 2d 489 (Miss. C t. App. 2006). Allen f iled his f i rst m otion f

or postconviction relief ( PCR) in 2013 and his second in 2014. Both were dism issed. This appeal addresses Allen’s third PCR m otion, f i led in 2016. As set f

orth in this opinion, we af

f i rm the trial court’s dism issal f or lack of j urisdiction. ¶2. On Novem

ber 14, 2016, Allen f

iled his third P CR m o tion, which the George CountyCircuit Court dism issed on Novem ber 15, 201 6

. T h e t r i a l court, in its order of dism issal, f ound that Allen’s claim s were tim e barred, b a r r e d a s a successive writ, barred under the doctrine o f res judicata, and were capable of d eterm ination a t trial or on direct appeal. The trial court also f

ound that Allen f

ailed to see k p e r mission f rom the Mississippi Suprem e Court to f ile his PCR m otion pursuant to Mississippi Code Annotated section 99-39-7 (Rev. 2015). Allen now appeals the trial court’s dism issal of his PCR m otion. Finding no error, we af f irm the trial court’s dism issal f or lack of jurisdiction. FACTS ¶3. On July 1, 2 003, Allen was indicted f o r s e x u a l b a t t e r y . A George County jury convicted Allen of the of

f ense, and the trial court sentenced Allen to serve twenty -f ive y ears in the custody of the Mississippi Departm ent of Corrections (MDOC). On d irect appeal of his sentence and c onviction, this Court af f irm ed the holding o f the trial court. A llen , 960 So. 2d at 490 (¶1). ¶4. I n J a n uary 2 011, Allen f iled a m otion f

or reconsideration, which the M i s s i s s i p p i Suprem e Court d ism issed. 1 I n February 2013, Allen f iled a subsequent application f or leave with the suprem e court to proceed in the trial court. The suprem e c o urt dism issed his application on March 2, 2013. ¶5. Allen th en f

iled a PCR m otion and another application f o r l e a v e w i t h the suprem e court to proceed in the trial c ourt. The trial court dism issed h is m otion in August 2 014. As

a result, A llen f

iled two writs of m andam us. The s uprem e c o u r t d i s mi s sed them without

1 T h e m o t io n an d o rd er f

ro m M ississip p i S u p rem e C o u rt C au se N o . 2 0 1 0

- M -0 0 9 2 0 is ab sen t f

ro m th e reco rd

. 2prejudice, and the suprem e court also dism issed Allen’s application f or l eave t o f

ile his PCR

m otion as m oot. ¶6. F o l l o w i n g t h e s u p r e m e court’s dism issal of h is prior m otions, A llen f iled a P C R

mo t i o n on Decem

ber 7, 2015. T he s uprem e court entered an order deny ing his m ot i o n , f inding Allen’s claim s “tim e barred, barred as a s uc c e ssive w rit, barred under the doctrine of r es judicata, a nd/or were c apable of determ ination at trial or on d irect appeal

. . . [ and that Allen f a iled] to m ake a substantial showing of the denial of

a state or f

ederal right.” 2 ¶7. On Novem

ber 14, 2016, A llen nonetheless f iled the instant m otion to show cause in the trial court, which the trial court treated as a P CR m o tion. The trial court r esponded with

a dism issal and bar to f

uture i n f orm a pauperis status. The trial court took issue with Allen’s

m otion, f inding the m otion to be an “ obvi ous attem pt a t postconviction r elief ,” despite its title. A dditionally , the trial c ourt f ound that Allen f

ailed t o seek p erm i ssion o f the suprem e court t o p r o c e e d in the trial court, which d eprived the trial court o f jurisdiction. The trial court cited section 99-39-7 that states the f ollowing: “ [ w]here the conviction and sentence have been af

f irm ed on appeal o r the appeal h as been dism issed, the m otion under this article shall n ot be f

iled in the trial court u ntil the m otion shall have f irst b een presented to a quorum of the Justices of the Suprem e C o u r t o f M ississippi

. . . and an order granted allowing the f iling o f such m otion in the trial court.” A llen now appeals the dism issal of his third PCR

m otion. STANDARD OF REVIEW

2 T h e m o t io n an d o rd er f

ro m M ississip p i S u p rem e C o u rt C au se N o . 2 0 1 5

- M -0 1 2 6 1 is ab sen t f

ro m th e reco rd

. 3¶8. “ An appellate court will not reverse the circuit court’s d ism issal of a P C R mo t i o n

absent a f inding that the decision was clearly erroneous.” W hetstone v . State , 109 So. 3d 616, 618 (¶6) (Miss. Ct. App. 2013). Jurisdictional “ [ q]uestions of l aw, h owever, are reviewed de novo.” Id ; see also Crosby v. State , 66 So. 3d 161, 165 (¶7) (Miss. Ct. App. 2010). DISCUSSION ¶9. Allen seeks exception f rom the tim e bar and s uccessive-writ b ar by asserting that his claim s involve v iolations o f his f undam ental rights, and theref ore s h ould b e excepted f

rom t h e procedural bars. Specif i cally , Allen argues: (1) he was denied ef f ective assistance o f counsel guaranteed to h im by the Sixth Am endm ent of the Constitution of the United States and Article III, section 26 o f the Constitution of the S tate of Mississippi; ( 2) his conviction rests o n illegally obtained evidence; (3) he was denied due process of law because the State withheld f

avorable evidence and continues to possess that evidence; and (4) h e is innocent of the convicted crim e. ¶10. Mississippi Code Annotated section 99-39-7 provides that: W h ere a conviction and sentence have been af f irm ed on appeal or the appeal has been dism issed, the m o tion u nder this article s hall not be f iled in the trial court until the m otion shall have f irst b e e n presented to a quorum of the justices of the Suprem e Court of Mississippi, convened f or said purpose either in term tim e or in vacation, and an order granted allowing the f iling o f su ch m otion in the trial court. See W a rdley v. State , 37 So. 3 d 1222, 1224-25 ( ¶8) (Miss. Ct. App. 2 010); M cKenzie v. State , 66 So. 3d 1274, 1275-76 (¶¶4-5) (Miss. Ct. App. 2001). ¶11. W h ile there are exceptions to the procedural t im e bar f o u n d i n M i s s i s s ippi Code Annot a t e d section 99-39-5(2) (Supp. 2011) and successive-writ bar in Mississippi Code

4Annotated section 9 9-39-23(6) (Supp. 2011), there is no r elief provided t o Allen f or not

com ply i ng with the requirem e nts of section 99-39-7. W ithout a m otion f or leave f iled and perm ission f

r om the Mississippi Suprem e Court granted, A l l e n ’ s P CR m otion cannot properly be f iled in the trial court. ¶12. In the present case, Allen f iled a mo t i o n t o show c ause in the trial court, which the trial court treated as a PCR m otion. Regardless o f i ts t itle, the trial c o u rt f ound that the

m otion was an “obvious a ttem pt at postconviction r elief .” Accordingly , and based upon the f oregoing, the trial court was deprived of jurisdiction to h ear Allen ’ s m otion because he f ailed t o receive perm ission f rom the suprem e court as statutorily required in section 99-39-7. ¶13. W e theref

ore af f irm the trial court’s dism i ssal f or lack of jurisdiction. ¶14. AFFIRMED. LEE, C.J., I RVING AND GRIFF IS, P.JJ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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