IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CP-01143-COA

KENTRIAL BELK A/K/A KENTRAIL BELK

A/K/A KENTRIAL L. BELK A/K/A KENTRAIL

L. BELK A/K/A KENTRIAL LEVEX BELK

A/K/A TRELL

 APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/19/2018

TRIAL JUDGE: HON. LEE J. HOWARD

COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: KENTRAIL BELK (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: ALLISON ELIZABETH HORNE 

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

DISPOSITION: APPEAL DISMISSED - 03/24/2020

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. On July 10, 2015, an Oktibbeha County grand jury indicted Kentrail Belk on nine

separate counts of controlled substance violations. On July 31, 2017, Belk pleaded guilty to

count nine, and counts one through eight were retired to the file. The trial court sentenced

Belk to serve a term of ten years in the custody of the Mississippi Department of Corrections

(MDOC).1 Thereafter, Belk filed a motion for post-conviction relief (PCR) on the grounds

1 Belk was also ordered to pay all court costs, pay a fine of $1,000, and submit himself

to any alcohol or drug counseling that the MDOC deems necessary.
that his plea was involuntary and the product of ineffective assistance of counsel. He

claimed (1) counts one through eight should have been dismissed on jurisdictional grounds;

(2) he was never arrested, arraigned, or provided a preliminary hearing for the charge in

count nine; and (3) his ten-year sentence was illegal. The circuit court granted Belk’s PCR

motion in part (as to the illegal-sentence issue) and re-sentenced him to serve a term of eight

years in the custody of the MDOC pursuant to Mississippi Code Annotated section 41-29-

139(a) (Supp. 2016). But the circuit court failed to address Belk’s other claims of ineffective

assistance of counsel. Belk appeals from the circuit court’s order. We dismiss Belk’s appeal

for lack of appellate jurisdiction and remand this matter to the circuit court for a final

decision. See Newsom v. Newsom, 138 So. 3d 275, 278 (¶11) (Miss. Ct. App. 2014).

FACTS AND PROCEDURAL HISTORY

¶2. Belk disputes whether he was indicted on eight or nine felony counts. On June 3,

2015, at Belk’s initial appearance, he was informed of felony charges on five counts of the

sale of cocaine and three counts of the sale of marijuana. There was no mention of a ninth

count. 

¶3. On July 10, 2015, an Oktibbeha County grand jury indicted Belk for nine separate

counts of violations of controlled substances laws: six counts for the sale of cocaine and three

counts for the sale or transfer of marijuana. The indictment included Belk’s previous

convictions under each count, and the State sought enhanced punishment under Mississippi

Code Annotated section 41-29-147 (Rev. 2013) of the Uniform Controlled Substances Law

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for each count.2 Under this statute, Belk’s term of incarceration could have been doubled.

Id.

¶4. On the same day that the indictment was filed, a capias was issued, authorizing the

sheriff to arrest Belk and hold him in custody until he entered a plea to all nine charges.

¶5. On August 6, 2015, Belk was served with the capias. On the same day, according to

the general docket, Belk waived arraignment and entered a plea of not guilty. Belk was

served with the indictment, which included all nine counts.

¶6. An appearance bond from A & A Bail Bonds, dated August 7, 2015, reflected that

Belk was charged with five counts of the sale of cocaine and three counts of the sale of

marijuana. It made no mention of count nine. 

¶7. On October 25, 2016, the court granted the State’s motion to amend the indictment

to reflect Belk’s habitual offender status pursuant to Mississippi Code Annotated section 99-

19-81 (Supp. 2014).3 Under this statute, Belk faced the maximum sentence without

2 Section 41-29-147 states that “any person convicted of a second or subsequent

offense under this article may be imprisoned for a term up to twice the term otherwise

authorized, fined an amount up to twice that otherwise authorized, or both.”

3 Mississippi Code Annotated section 99-19-81 states, “Every person convicted. . . 

shall be sentenced to the maximum term of imprisonment prescribed for such felony unless

the court provides an explanation in its sentencing order setting forth the cause for deviating

from the maximum sentence, and such sentence shall not be reduced or suspended nor shall

such person be eligible for parole or probation.” Belk was subject to section 99-19-81

because he was previously convicted in the Clay County Circuit Court for the crime of

possession of cocaine and sentenced to serve three years. In addition, Belk had a prior

conviction for the sale of cocaine and was sentenced to serve ten years, with five years of

post-release supervision.

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eligibility for parole for all counts if convicted. 

¶8. On July 31, 2017, Belk executed a petition to enter a plea of guilty in which he waived

his constitutional rights to a trial on the merits. The petition stated that Belk was pleading

guilty to count nine, and as a result, counts one through eight would be retired to the file. A

hearing entitled “Arraignment and Guilty Plea” was held on the same day. At the outset of

the hearing, the State deleted the enhancement punishment but retained the habitual offender

status. The trial court sentenced Belk to serve a term of ten years in the MDOC’s custody

for his conviction of count nine. The court ordered him to pay all court costs, pay a fine of

$1,000, and submit himself to any alcohol or drug counseling that the MDOC deemed

necessary.

¶9. On December 15, 2017, Belk filed a pro se “Verified Motion For Post-Conviction

Relief” in the Oktibbeha County Circuit Court, arguing that his guilty plea was involuntary

and the product of ineffective assistance of counsel that resulted in an illegal sentence.

¶10. On May 18, 2018, the State agreed and requested that Belk be re-sentenced to serve

a term of eight years in compliance with the statutory maximum. But the State argued that

the remaining claims within Belk’s PCR motion were without merit. 

¶11. The circuit court set Belk’s PCR motion for a hearing on July 17, 2018. At the resentencing hearing, the circuit court stated that it was only considering Belk’s claim that he

received an illegal sentence. The court determined it would consider Belk’s other PCR

claims later and would order another hearing if necessary, stating:

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There are some other issues that may or may not require a hearing. The

allegations that the indictment was defective and so on and so forth are

contained also in there. But the major issue that the Court wanted to address

was the length of sentence. The Court sustains that portion of the collateral

relief act, and he has been returned on cause number 2015-0239 for

resentencing. And that is the only issue that I -- contained in the PCR that I am

addressing at this hearing. The other issues will be considered by the Court to

make a determination as to whether an actual hearing is necessary on those

other issues or not. I make that determination based on the record as to whether

or not hearings are necessary on the allegations of defective indictments and

things of that nature. If it requires an evidentiary hearing, the defendant will

be returned for that hearing. But in this particular hearing, the only thing that

I am addressing is the illegality of that sentence.

 

The court then re-sentenced Belk to serve a term of eight years in the custody of the MDOC,

pay all court costs, pay a fine of $1,000, and submit himself to any alcohol or drug

counseling the MDOC deems necessary. This conclusion resolved one ofBelk’s PCR issues.

¶12. The circuit court entered a written order on the re-sentencing on July 18, 2018, but

did not address Belk’s remaining PCR claims. The circuit court issued no subsequent orders

prior to Belk’s appeal.

¶13. Belk filed his notice of appeal on August 8, 2018.

STANDARD OF REVIEW

¶14. “We review the dismissal or denial of a PCR motion for abuse of discretion. We will

only reverse if the circuit court’s decision is clearly erroneous. When reviewing questions

of law, our standard is de novo.” Kennedy v. State, 287 So. 3d 258, 263 (¶12) (Miss. Ct.

App. 2019), cert. denied, 279 So. 3d 1087 (Miss. 2019). “The PCR movant bears the burden

ofshowing he is entitled to relief by a preponderance of the evidence.” Webster v. State, 152

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So. 3d 1200, 1203 (¶5) (Miss. Ct. App. 2014) (internal quotation mark omitted).

DISCUSSION

¶15. Although Belk timely filed a notice of appeal, the circuit court’s sentencing order did

not resolve Belk’s PCR claim of ineffectiveness of his trial counsel’s assistance and is not

a final judgment. The circuit court corrected the obvious error that Belk had been sentenced

to more than was statutorily allowed. However, the circuit court expressly reserved ruling

on the other issues Belk raised and had not ruled on them at the time of Belk’s appeal.

¶16. In his PCR motion, Belk argues that his trial counsel was ineffective because he failed

to seek dismissal of several charges in Belk’s indictment because Belk was never arrested,

arraigned, or provided with a preliminary hearing on several of the charges and because Belk

received an illegal sentence. 

¶17. Because the circuit court has not ruled on these other PCR issues, especially in the

context ofineffective assistance of counsel, we have no jurisdiction to consider Belk’s appeal

of these matters. “In consideration of jurisdiction, the [appellate] Court may question only

a final, appealable judgment or that which ‘adjudicates the merits of the controversy and

settles all issues as to all the parties and requires no further action by the trial court.” 

Davenport v. Hansaworld, USA Inc., 212 So. 3d 767, 770 (¶10) (Miss. 2017). Although Belk

filed a timely notice of appeal, because the circuit court had not ruled on all the issues he

raised, Belk’s notice of appeal was premature. “[A] notice of appeal from a judgment or

order that is not final is premature and will not confer jurisdiction on the appellate court.” 

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Bailey v. Wells Fargo Bank N.A., 282 So. 3d 482, 487 (¶13) (Miss. Ct. App. 2019) (internal

quotation marks omitted) (quoting LaFontain v. Holliday, 110 So. 3d 785, 787 (¶¶8-10)

(Miss. 2013)). See Wigington v. McCalop, 191 So. 3d 124, 127 (¶7) (Miss. 2016).

¶18. Accordingly, we dismiss Belk’s appeal for lack of jurisdiction and remand the matter

to the Circuit Court of Oktibbeha County, Mississippi, to finish its resolution of Belk’s PCR

motion. 

¶19. APPEAL DISMISSED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,

WESTBROOKS, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. 

TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN

OPINION.

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