IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00494-COA JOSHUA ALLEN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 03/09/2018 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: LANESHA L. SIMS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: VACATED: 06/11/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: CARLTON, P.J., LAWRENCE AND C. WILSON, JJ. C. WILSON, J., FOR THE COURT: ¶1. Joshua Allen appeals the circuit court’s d enial of his m otion f o r p o s t-conviction collateral relief (PCR). W e f ind the circuit c ourt lacked jurisdiction to hear the m otion, and as a result, we vacate the judgm ent and dism iss Allen’s PCR m otion. FACTS ¶2. In March 2015, Allen was convicted o f one count of arm ed robbery and one count of conspiracy t o comm it arm e d robbery

. Allen v. State , 200 So. 3 d 1100, 1101 (¶1) (Miss. Ct. App. 2016). The Rankin County Circuit Court sentenced Allen to t h i rty -f ive y ears f

or the

arm ed r obbery conviction and f ive y ears f

or the conspirac y c o nviction, t o be served concurrently

in the custody

of the Mississippi Departm ent of Corrections. Id

.¶3. Allen subsequently appealed his conviction and sentence to the Mississippi Suprem e

Court. Id

. On Septem

b er 20, 2016, this Court af f irm ed Allen’s convictions and sentences. Id . at 1102 (¶4). ¶4. On June 21, 2 0 17, Allen f i led a m otion f

or P CR and r equested a new trial. In support of his m otion, A llen relied o n an a f f idavit that his f

orm er co-def

endant prepared and in which the co-def

endant c laim e d that she f

alsely testif

ied against Allen at h is trial. The c ircuit court held an evidentia r y h earing during which the c o-def endant testif

ied. Following the evidentiary hearing, the circuit c ourt f ound Allen’s m otion f

or PCR was not well taken and denied the m o tion. Allen t im ely appealed, an d t h e State s ubsequently f iled a m otion to dism iss the appeal f

or a lack of

jurisdiction. S TANDARD OF REVIEW ¶5. W e apply a de novo s tandard of review to questions of law, legal conc l u s ions, and jurisdictional questions. A laddin Constr. C o. v. John Hancock Life Ins. Co. , 914 So. 2d 169, 174 (¶8) (Miss. 2005). ANALYSIS ¶6. In its m otion to d ism iss Allen’s appeal, the State asserts the circuit court lacked jurisdiction over Allen’s m otion f or PCR because Allen f

ailed to obtain perm ission f rom the Mississippi Suprem e Court to proceed in the circuit court, as required by M ississippi Code Annotated secti o n 9 9

- 3 9

- 7 (Rev. 2007). The State asserts that because the circuit court lacked jurisdiction, “[ this Court], as well, lacks jurisdiction to add r e s s A llen’s specif ic allegations and claim s.”

2¶7. “A f inal judgm e nt f

r om which a tim e ly notice of appeal was f iled conf ers jurisdiction upon an appellate c ourt to determ ine w hether t h e c i r c u it court’s disposition was lawf ul.” Forkner v . State , 227 So. 3 d 404, 406 (¶6) (Miss. 2017) (citing Mississippi Rule of Appellate Procedure 4(a)). “Thus, this Court ha[ s] jurisdiction to determ ine whether the circuit court’s disposition o f [ Allen]’s m otion was lawf ul.” Id

. Accordingly , the S tate’s m o tion to dism iss the appeal is denied. ¶8. However, we a gree that the circuit court lacked jurisdiction to decide A llen’s m otion. Pursuant to section 99-39-7: W h ere the conviction and sentence have b een af f irm ed o n appeal or the appeal has been dism issed, the m otion [ f or P CR] shall not b e f

i l e d i n the [ c ircuit] court until the m otion shall have f irs t b e e n presented to a quorum of the Justices of the S uprem e Court o f Mississippi

. . . and an order g ranted allowing the f i ling of such m otion in the [ circuit] court. Here, this Court af

f irm ed Allen’s conviction and sentence o n appeal. A l l en , 200 So. 3 d at 1102 (¶4). There is no e vidence that Al l e n r e q u ested leave f rom the suprem e court to proceed in circuit court, as required by s e c t i o n 9 9-39-7. Because Allen d id not have perm ission to f

ile his m otion f

or PCR in the circuit court, the circuit c ourt lacked jurisdiction to consider the m o tion and should have dism issed the m otion. ¶9. Allen a sserts “the unam biguous language of [ s]ection 99-39-7 ref ers to a conviction and sentence appealed t o the Suprem e C ourt of Mississippi and there affirmed or the appeal dism issed.” Allen contends that because his conviction and sentence were not af f irm ed by the Mississippi Suprem e Court, section 99-39-7 does not apply . W e disagree. ¶10. In Forkner , F orkner appealed his conviction and sentence to the Mississippi Suprem e

3Court. Forkner , 227 So. 3d at 405 (¶3). The s uprem e c ourt assigned the case t o this Court,

which af f irm e d his conviction and sentence. I d

. F o rkner subsequently f iled a m otion f

or PCR in the circuit court without f irst o btaining perm ission f r om the suprem e c ourt. Id

. The circuit court dism issed the m otion f or PCR and Forkner appealed. I d

. at (¶5). On appeal, the suprem e court f

ound that “ [ b]ecause For k n e r h a d n ot obtained perm i ssion to f ile a m otion f or [ PC R ] i n t h e circuit court,

. . . the circuit c ourt

. . . lacked authority t o a djudicate Forkner’s m otion.” Id

. at 405-06 (¶5). ¶11. Here, as in F

orkner , A llen appealed his conviction and sentence to the suprem e court, which assigned his c ase to this Court. This Court af f irm ed Allen’s conviction and sentence. Like F orkner , Allen f

ailed to obtain perm ission f rom the suprem e court to f ile a m otion f

or PCR in the circuit court. As a result, the circuit court lacked authority to a djudicate Allen’s

m otion. ¶12. W e f

ind the circuit court erred in f ailing t o dism i ss this case f or a l ack o f j urisdiction. Accordingly , the judgm ent of the Rankin County Circuit C ourt is va cated. W e render judgm ent, dism issing Allen’s m otion f or PCR f or his f a ilure to obtain leave as required by section 99-39-7. ¶13. VACATED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.

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