IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 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. HOW ARD COURT FROM W HICH 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, a n Oktibbe h a C o unty grand jury indicted K entrail Belk on nine separate counts o f c ontrolled substance violations. On July 31, 2017, Belk p leaded guilty to count nine, and counts one through eight were retired to the f i le. The trial court sentenced Belk to serve a term of ten y ears in the custody o f t he Mississippi Departm ent of Corrections (MDOC). 1 Thereaf

ter, Belk f

iled a m otion f

or p ost-conviction relief (PCR) on the grounds

1 Belk was also ordered to p ay all court costs, pay a f ine of $1,000, and s u

bm it him self to any a l cohol or drug counseling that the MDOC deem s necessary .that his p lea was involuntary and the product of i nef f ective assistance of counsel. H e claim ed (1) counts one through e ight should have been dism issed on j urisdictional grounds; (2) he was never arrested, arraigne d , o r provided a prelim i nary hearing f or the charge in

count n ine; and (3) his ten-y ear sentence was i llegal. The circuit court granted Belk’s PCR

m otion i n part (as to the i llegal-sentence issue) and re-sentenced h im t o serve a term of eight
y ears in the custody

of the MDOC pursuant to Mississippi Code Annotated s ection 41-29- 139(a) (Supp. 2016). But the circuit court f a iled to address Belk’s other claim s of inef f ective assistance of counsel. Belk appeals f rom the circuit court’s o rder. W e dism iss Belk’s appeal f or lack of appellate j u r i s diction and rem and this m atter t o the circuit court f or a f inal 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 f e lony count s . O n June 3, 2015, at B elk’s initial a

ppearance, he was inf

orm ed of f

elony charges on f

ive c o unts of the sale of cocaine a nd three counts of the sale of m arijuana. There was no m ention of a ninth

count. ¶3. On July 1 0, 2015, an O k t i b b e h a County grand jury indicted Belk f or nine separate

counts of v iolations of controlled substances laws: six c ounts f or the sale of cocaine and three

counts f or the sale or transf

er of m arijuana. The indictm ent i n c l u d e d B elk’s previous convictions under each count, and the State sought enhanced p unishm ent under Mississippi Code A nnotated section 4 1 -29-147 (Rev. 2013) of the Unif orm Controlled Substances Law

2f

or each count. 2 Under this statute, Belk’s term of incarceration could have been doubled. Id. ¶4. On the sam e day that the indictm ent was f i led, a capias was issued, auth o r izing the sherif f 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 s am e day , according to the general docket, Belk waived arraignm ent and entered a p l e a o f n o t guilty

. Belk was served with the indictm ent, which included all nine counts. ¶6. An appearance b o nd f rom A & A Bail Bonds, dated Augus t 7 , 2015, ref lected that Belk was charged w ith f ive counts of t he sale of cocaine and three counts of the sale of

m arijuana. It m ade no m ention of count nine. ¶7. On October 25, 2016, the court granted the State’s m otio n t o am end the indictm ent
to ref lect Belk’s habitual o f

f ender status pursuant t o Mississippi Code Annotated section 99-
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- 8 1 ( S upp. 2014). 3 Under this statute, B elk f aced t he m axim

um sentence without

2 S ection 41-29-147 s t a t es that “any person convicted of a second or subsequent of f ense under this article m ay be im prisoned f

or a term up to twi c e t h e term o therwise authorized, f

ined an am ount up to twice that otherwise authorized, or both.”

3 Mississippi Code Annotated section 99-19-81 states, “Every person convict e d

. . . shall be sentenced to the m axim um term of i m

prisonm ent prescribed f

or such f elony unless the court provides an explanation in its sentencing order setting f orth the cause f

or deviating f rom the m axim

um sentence, and such sentence s h all not b e reduced or suspended nor shall such p e rson be eligible f o r parole or probation.” Belk was subject to section 99-19-81 because he wa s p r e v i o u sly convicted in the Clay County Circuit Court f or the crim e of possession of cocai n e a n d s e n tenced to serve three y ears. In a ddition, Belk had a prior conviction f

or the s ale of c oca i n e a n d was sentenced to serve ten y ears, with f ive y ears of post-release supervision. 3eligibility

f or parole f

or all counts if

convicted. ¶8. On July 31, 2017, Belk executed a p etition t o enter a plea of guilty in which he waived his constitutional rights to a trial on the m erits. The petition s tated that Belk was pleading guilty to count nine, and a s a result, counts one through eight would be retired to the f ile. A hearing entitled “Arraignm e nt and Guilty P lea” was h eld on the sam e d ay . At the outset of the hearing, the S tate deleted the enhancem ent punishm ent but retained t he h abitual of f ender

status. The trial c ourt sentenced Belk to serve a te rm of ten y ears in the MDOC’s custody f or his c onviction of c ount nine. The court ordered h im to pay all court costs, pay a f ine of $1,000, and subm it h im self to any a l c o h ol or drug counseling that the MDOC deem ed
necessary . ¶9. On Decem

ber 15, 2017, Belk f

iled a pro se “Ve r i f

i e d M o t i o n F o r Post-Conviction Relief ” i n the Oktibbeha County Circuit C ourt, arguing that his guilty plea was i nvoluntary and the product of inef

f ective assistance of

counsel that resulted in an illegal sentence. ¶10. On May 1 8 , 2018, the State agreed and requested that Belk be re-sentenced to serve

a term o f e ight y ears in com p l iance with the statutory m a x im um . But the State a r gued that the rem a ining claim s within Belk’s PCR m otion were without m erit. ¶11. The circ u i t c o u r t set Belk’s PCR m o tion f or a hearing on July 17, 2018. At the resentencing hearing, the circuit court stated that it was only considering B elk’s claim that he received an illegal sentence. The court determ ined it w ould consid e r B elk’s other PCR claim s later and would order another hearing if necessary , stating:

4There are som e other issues that m ay or m ay n o t r e q u ire a hearing. The

all e g a t ions t hat t he indictm ent was def ective and so on and so f orth are contained a lso in there. B ut the m ajor issue that the C ourt w anted t o address was the length o f sentence. The Cour t s u s t a ins that portion o f the collateral rel i e f a c t , and he has been returned on cause num ber 2015-0239 f

or resentencing. And that is the only issue that I -- c ontained i n the PCR that I am addressing at t his hearing. The other issues w ill be considered b y the Court to m ake a determ ination a s to whether an actual hearing is n e c e s sary on those other issues or not. I m ake that d eterm i nation based on the record as to whether or not hearings are necessary on the allegations of def ective indictm ents and thi n g s o f that nature. If it r equires an evidentiary hearing, the def endant will be returned f

or that hearing. But in this particular hearing, the only thing t hat I am addressing is the illegality of that sentence. The c ourt then re-sentenced Belk to serve a term of eight y ears in the c ustody of the MDOC,
pay all court costs, pay a f i ne of $1,000, and subm it him s elf to a ny a l coho l o r drug counseling the MDOC deem s necessary . This c onclusion resolved o ne of Belk’s PCR issues. ¶12. The circuit court entered a written order on the re-sentencing on July 18, 2018, but did not address B elk’s rem aining PCR claim s. The circuit court issued n o subsequent orders prior to Belk’s appeal. ¶13. Belk f

iled his notice of

appeal on August 8, 2018.
STANDARD OF REVIEW ¶14. “W e review the dism issal or denial of a PCR m otion f or a b use of discretion. W e w ill only r everse if

the circuit court’s decision is clearly erroneous. W hen reviewing questions of law, our standard i s de novo.” Kennedy v. S t a t e , 287 So. 3 d 258, 263 (¶12) (Miss. Ct. App. 2019), cert. denied , 279 S o. 3d 1087 (Miss. 2 019). “The PCR m ovant bears the burden of showing he is entitled to relief b y a preponderance of the evidence.” W ebster v. State , 152

5So. 3d 1200, 1203 (¶5) (Miss. Ct. App. 2014) (internal quotation m ark om itted).
DISCUSSION ¶15. Although B elk tim ely f i led a notice of appeal, the circuit court’s sentencing order did

not resolve Belk’s PCR claim o f inef f ectiveness of

his trial counsel’s assistance and is not

a f inal judgm ent. T he circuit court corrected the obvious error t hat Belk had been sentenced

to m ore 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 tim e of

Belk’s appeal. ¶16. In h is PCR m otion, B elk argues t hat his trial counsel was inef f ective because he f

ailed to seek dism issal of

several charges in Belk’s indictm ent because Belk was n ever arrested, arraigned, or provided with a prelim inary hearing o n several o f t he c harges and because Belk received an illegal sentence. ¶17. B e c ause the circuit court has not ruled on these other PCR issues, especially in the

con t e x t of inef

f ective assistance of counsel, we have no j urisdiction t o consider Belk’s appeal of these m atters. “ In consideration of jurisdiction, the [ appellate] Court m ay question only

a f inal, appealable judgm ent or that which ‘adjudicates the m erits of the contr o v ersy and settles all issues as t o all the p arties and requires no f urther action by the tr i a l c o u r t

. ” Davenport v. H

ansaworld, USA Inc ., 212 So. 3d 767, 770 (¶10) ( Miss. 2017). Although Belk f iled a tim ely notice o f appeal, because the circuit court had n ot ruled o n a l l t h e issues he raised, Belk’ s n o t i c e of appeal was prem ature. “ [ A ] notice o f a ppeal f rom a judgm ent or order that is not f

inal is p rem ature and will not conf e r j u r i s d i c t i o n o n the appellate court.”

6Bailey v. W ells Fargo Bank N.A. , 282 So. 3d 482, 487 (¶13) (Miss. Ct. App. 2019) (internal quotation m arks om itted) (quoting LaFontain v. Holliday, 110 So. 3d 785, 787 (¶¶8-10) (Miss. 2013)). S

ee W igington v. McCalop, 1 91 So. 3d 124, 127 (¶7) (Miss. 2016). ¶18. Accordingly , we d ism iss Belk’s a ppeal f or l ack o f jurisdiction and rem and the m atter
to the Circuit Court of Oktibbeha County , Mississippi, to f inish i ts r esolution of Belk’s PCR

m otion. ¶19. APPEAL DISMISSED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, LAWRENCE, McCARTY A ND C. WILSON, JJ., CONCUR. TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WR I T TEN OPINION.

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