IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-KP-00265-SCT

WILLIE MARSHALL

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 01/11/95

TRIAL JUDGE: HON. JOHN LESLIE HATCHER

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: W. GLENN WATTS

DISTRICT ATTORNEY: NA

NATURE OF THE CASE: CRIMINAL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 9/5/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 9/26/96

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

PITTMAN, JUSTICE, FOR THE COURT:

¶1. This case is an appeal from a denial of relief under the Uniform Post Conviction Collateral Relief

Act. Willie Marshall plead guilty in the Circuit Court of Bolivar County on December 20, 1984. His

guilty pleas were accepted and sentencing was deferred until the May 1985, term of court. On May

28, 1987, Marshall was given a five year sentence. Marshall filed a petition for post-conviction relief

on February 9, 1994. From the denial of this petition, Marshall appeals.

¶2. Marshall contends that the delay in sentencing violated his Sixth Amendment right to a speedy

trial. In support of his position, Marshall cites Trotter v. State, 554 So. 2d 313, 318 (Miss. 1989),

where the Court adopted the Fifth Circuit's position that sentencing is part of the trial for the

purposes of the Sixth Amendment speedy trial guarantee. See also Juarez-Casares v. United States,

496 F.2d 190, 192 (5th Cir. 1974).

¶3. Marshall also argues that the trial court should have conducted an evidentiary hearing on the

claims presented. He cites Alexander v. State, 605 So. 2d 1170, 1173 (Miss. 1992), for the Court's

commitment to the principle that a post-conviction collateral relief petition which meets basic

requirements is sufficient to mandate an evidentiary hearing unless it appears beyond doubt that the
petitioner can prove no set of facts in support of his claim which would entitle him to relief. Marshall

maintains he "made a substantial showing of denial of his rights under state law, as demonstrated by

the record, that the trial court did not follow the proper law in regards to denial of an appeal through

fault of counsel of denial of counsel to perfect and prosecute direct appeal."

¶4. Marshall filed his petition in February 1994, almost seven years after he was sentenced. He is

precluded by the time bar laid out in section 99-39-5 (2). Marshall asserts that the time bar is not

applicable to his case. In support he cites Luckett v. State, 582 So. 2d 428, 430 (Miss. 1991), where

the Court held, "[e]rrors affecting fundamental constitutional rights may be excepted from procedural

bars which would otherwise prohibit their consideration . . ." See also Kennedy v. State, 626 So. 2d

103, 105 (Miss. 1993). However, the Court discussed at length the three year statute of limitations

provision in Cole v. State, 608 So. 2d 1313, (Miss. 1992), cert. denied, 508 U.S. 962 (1993). We

held, "[i]t is a well-settled principle that a state may attach reasonable time limitations to the assertion

of federal constitutional rights. (citations omitted) We conclude that a time limitation also may be

placed on the exercise of a state constitutional right." Id. at 1319. Cole also recognized that statutes

of limitations speak to remedial and procedural matters rather than the destruction of fundamental

rights. Id. Here, Marshall had a remedy; he had three years within which to challenge the delay of his

sentence. Marshall, however, waited almost seven years before filing. By failing to exercise the

statutory remedy, he waived the right to challenge his sentence.

¶5. Furthermore, Marshall's only support for his petition was his own affidavit. This affidavit was not

sufficient for establishing an evidentiary hearing based on Campbell v. State, 611 So. 2d 209, 210

(Miss. 1992). Campbell's petition was based on allegations that a witness was available to testify but

not available to give an affidavit. Id. On the basis of Campbell's pleading and the record, we affirmed

the lower court's ruling that Campbell did not make the requisite showing to entitle him to postconviction relief. The same can be said for Marshall. His petition is only supported by his affidavit.

There is no affidavit from his attorney or anyone else involved with his plea. Marshall did not make

the requisite showing for an evidentiary hearing.

¶6. This matter is time barred pursuant to the Court's decision in Cole. In addition there is no support

for an evidentiary hearing as required by the Act. The decision of the lower court is affirmed.

¶7. AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., McRAE, ROBERTS, SMITH AND MILLS,

JJ., CONCUR. BANKS, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED

BY SULLIVAN, P.J.

BANKS, JUSTICE, CONCURRING:

¶8. I concur in the result but I do not agree that our statutory scheme requires affidavits other than

the accused's in every case as suggested by the majority opinion. See Miss. Code Ann. § 99-39-9(1)

(e) (1972) (affidavits required only in connection with "the facts which are not within the prisoner's
personal knowledge"); Foster v. State, 95-DP-00750-SCT, slip op. (Miss. 1996) (Banks, J.,

dissenting).

SULLIVAN, P.J., JOINS THIS OPINION.