IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00123-SCT

PINKEY WHITFIELD A/K/A PINKY WHITFIELD

A/K/A PENKEY B. WHITFIELD

v.

STATE OF MISSISSIPPI

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 11/21/95

TRIAL JUDGE: HON. R. KENNETH COLEMAN

COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: W.

GLENN WATTS

DISTRICT ATTORNEY: LARRY L. LITTLE

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: REVERSED AND REMANDED - 10/9/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/30/97

BEFORE SULLIVAN, P.J., PITTMAN AND BANKS, JJ.

PITTMAN, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

This case involves an appeal from a Chickasaw County Circuit Court Order denying post-conviction

relief to Pinkey Whitfield without an evidentiary hearing. Whitfield pled guilty to three charges of the

sale of a controlled substance, to-wit cocaine, on December 7, 1993. Her guilty pleas were accepted

and she was sentenced at that time to a term of thirty years on each of the charges, to run

concurrently. Whitfield filed a petition to vacate and set aside the convictions on January 11, 1995.

From the denial of this post-conviction relief, Whitfield appeals.

STATEMENT OF THE FACTS
On December 16, 1993, Chickasaw County Attorney, John A. Gregory, filed three separate criminal

informations charging Pinkey Whitfield with the sale of a controlled substance, cocaine. On

December 17, 1993, Whitfield petitioned the circuit court of Chickasaw County to allow her to plead

guilty to the aforementioned charges. The court, after thoroughly questioning Whitfield, determined

that she was aware of the consequences of entering a plea of guilty and that she was doing so freely

and voluntarily. It was the "observation of the Court of the defendant as she [stood] before the bench

that she's very capable, very competent to have considered this matter, and to have reached the

decision to offer a plea of guilty." Subsequent to the court accepting the guilty pleas, Whitfield signed

and filed a wavier of indictment on December 23, 1993.

On January 11, 1995, Whitfield filed her "Petition to Vacate and Set Aside Conviction." In her

petition, she asked the court to vacate and set aside her convictions alleging that the convictions were

unconstitutional based upon ineffective assistance of counsel. She alleged that "counsel for the

petitioner was ineffective, in that he [petitioner's counsel] allowed the petitioner to plead guilty

without a formal indictment, which clearly violated the petitioner's 5th amendment rights. Moreover,

by the petitioner's guilty plea, it violated her 14th amendment rights to due process of the law."

After examining Whitfield's petition, the court found that it is manifest that Pinkey Whitfield is not

entitled to any relief and that the petition for post-conviction relief should be dismissed. The Court

dismissed the petition pursuant to Section 99-39-11(2) of Miss. Code Ann. (1972). That section

states:

If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings

in the case that the movant is not entitled to any relief, the judge may make an order for its

dismissal and cause the prisoner to be notified.

Miss. Code. Ann. § 99-39-11(2) (1972).

STATEMENT OF THE ISSUES

Whitfield raises three issues in her appeal to this Court as stated below:

I. Whether the Trial Court violated Whitfield's Rights to Due Process.

II. Whether the Trial Court erred when it denied the Defendant's post-trial Motion to

Vacate and Set Aside Conviction.

III. Whether the Defendant was denied effective assistance of Counsel.

ANALYSIS

Whitfield alleges on appeal that she was allowed to enter a guilty plea without a formal indictment.

She further alleges that the trial court erred in denying her post-trial motion to vacate and set aside

her conviction. Finally, she states that she received ineffective assistance of counsel by allowing her

to sign a waiver of indictment after her guilty plea had been accepted and sentence had been handed

down. We agree with Whitfield and, therefore, reverse and remand the case for the following

reasons.
Contained in the record are nine pages of the transcript whereby the trial court examined Whitfield

and after a thorough examination determined that she was freely and voluntarily entering a guilty plea

to these three felony charges of the sale of a controlled substance, cocaine.

Also included in the record is a waiver of indictment signed by Whitfield and executed in open court

by her attorney, Richard Bennett. The form of the waiver seems to be appropriate and if timely

presented to the trial court likely would have waived the necessity of an indictment. However,

Whitfield had already pled and been sentenced, all without an indictment or waiver.

We are disturbed by the fact that the waiver of indictment was not executed by Whitfield or

Whitfield's attorney until after Whitfield's plea of guilty had been accepted and sentence handed

down. This clearly violates the Constitution of the State of Mississippi. The pertinent section is as

follows:

No person shall, for any indictable offense, be proceeded against criminally by information,

except in cases arising in the land or naval forces, or the military when in actual service, or by

leave of court for misdemeanor in office or where a defendant represented by counsel by sworn

statement waives indictment; but the legislature, in cases not punishable by death or by

imprisonment in the penitentiary, may dispense with inquest of the grand jury, and may

authorize prosecutions before justice court judges, or such other inferior court or courts as may

be established, and the proceedings in such cases shall be regulated by law.

Miss. Const. art. III, § 27 (1890) (emphasis added). The law is settled on this point. It has long been

the rule that the Mississippi Constitution requires an indictment before the prosecution for felonies

unless one of the noted exceptions exist. Quick v. State, 569 So. 2d 1197, 1199 (Miss. 1990) (citing

State v. Sansome, 97 So. 753 (1923)).

The fact that Whitfield was allowed to plead and was sentenced without an indictment and without a

valid waiver of indictment disposes of this case.

CONCLUSION

After criminal informations were filed against Whitfield on three separate charges of the sale of a

controlled substance, cocaine, she voluntarily entered a guilty plea, thereby waiving her right to

challenge the sufficiency of the State's evidence. However, Whitfield entered her guilty plea and was

subsequently sentenced prior to being indicted by the grand jury and prior to her execution of a valid

waiver of indictment. Both the Constitution of the State of Mississippi and the case law in Mississippi

are clear that a criminal defendant shall not be proceeded against criminally for a felony unless the

defendant was properly indicted by the grand jury or waives such indictment by a sworn statement. In

this case we had neither. Whitfield was not indicted and did not execute a valid waiver of indictment

until after she had entered her plea and had been sentenced by the trial court. For the foregoing

reasons, this case is reversed and remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS

OPINION.

PRATHER AND SULLIVAN, P.JJ., BANKS, McRAE AND MILLS, JJ., CONCUR. DAN
LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND

SMITH, JJ.

DAN LEE, CHIEF JUSTICE, DISSENTING:

I write separately because I believe that the lower court's denial of Pinky Whitfield's ("Whitfield")

motion for post-conviction relief should be affirmed. Whitfield did not include any supporting

affidavits in her motion to set aside her conviction. The relevant statute states:

(1) A motion under this chapter shall name the state of Mississippi as respondent and shall

contain all of the following:

* * *

(e) A specific statement of the facts which are not within the prisoner's personal knowledge.

The motion shall state how or by whom said facts will be proven. Affidavits of the witnesses

who will testify and copies of documents or records that will be offered shall be attached to the

motion. The affidavits of other persons and the copies of documents and records may be

excused upon a showing, which shall be specifically detailed in the motion, of good cause why

they cannot be obtained. This showing shall state what the prisoner has done to attempt to

obtain the affidavits, records and documents, the production of which he requests the court to

excuse.

Miss. Code Ann. § 99-39-9 (1)(e) (1994). In Robertson v. State, 669 So. 2d 11 (Miss. 1996), we

held that Robertson's motion for relief was "deficient in accordance with Miss. Code Ann. § 99-39-

9(1) (1994) since the only evidentiary support for his claim was his own affidavit. Therefore, the

denial of post-conviction relief is affirmed." Id. at 11. Whitfield did not even include her own affidavit

in the instant case. On this basis alone, the lower court's denial of post-conviction relief should be

affirmed.

Additionally, as to the majority's reversal in the instant case, employing the "cart before the horse"

reasoning, I disagree, basing such upon the valid waiver, signed in open court by Whitfield with

attending legal representation. Common sense dictates that the valid waiver operates to cure any

deficiency as to the timing of the waiver. What occurred in the instant case was a typical concession

to a defendant to expedite the plea entry process, which is sometimes slowed by the paucity of

support personnel in some jurisdictions. A common practice in jurisdictions short of such support

personnel is to take the guilty plea and complete the paper work following the plea hearing. Had

there been no valid waiver, I would quickly concur with the majority. Likely, the better procedure to

follow would have been to have the waiver in place before the entry of a plea and sentencing; but,

based upon the facts of this case, I would affirm the denial of Whitfield's petition for post-conviction

relief. Therefore, I respectfully dissent.
ROBERTS AND SMITH, JJ., JOIN THIS OPINION.