IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-CP-00267-COA
TRAMENDEZ

MOSLEY A/K/A TRAMENDEZ SANJUAN MOSLEY A/K/A TRAMENDEZ S. MOSLEY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/03/2016 TRIAL JUDGE: HON. LESTER F. W I LLIAMSON JR. COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: TRAMENDEZ MOSLEY (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR RELIEF FROM JUDGMENT DENIED DISPOSITION: AFFIRMED - 10/18/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., JAMES AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. Trem endez Mosley appeals f rom the d enial of his m o tion f or r elief u nder M ississippi Rule of Civil Proc e d u r e 6 0 ( b ) (6), which he f iled alm ost eight m onths af ter his underly ing

m otion f or post-convi c t i o n r e l i ef (PCR) was denied. The c ircuit court properly denied Mosley ’s Rule 60(b) m otion, as it s im ply r eargued his PCR m o tion. Mosley ’ s argum ents are also without m erit. Accordingly , we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On Novem

ber 5 , 2 0 1 0 , a L a u d e rdale County grand jury indicted M osley on threef

elony counts. Count I charged possession of m arijuana with the intent to distribute while
in possession of a f

i rearm . See Miss. Code Ann. §§ 41-29-139 (Supp. 2015) & 41-29-152 (Rev. 2013). C ount I I charged possession of c o caine with the intent to distribute whi l e in possession of a f

irearm

. See id. Count III charged possession of a f i r e a r m as a c onvicted
f elon. S ee Miss. Code Ann. § 97-37-5 (Rev. 2014). ¶3. On April 1, 2011, Mosley p led guilty to C o unt II sans t he f irearm enhancem ent. As part of his p lea bargain, the rem aining charges against h i m were nolle prossed. During Mosley ’s plea hearing, the circuit judge questioned him a s f ollows: Q. [ Paragraph 7(a) of y our plea petition indicates that] y ou have reached a p lea bargain agreem ent with the District Attorney ’s of f ice. I’m g oing to go over th a t p a r a g r a ph w ith y ou. I’m going to explain it to y ou, and then I’m going t o a s k y o u i f this is y our understanding of the f ull a nd com

plete plea bargain agreem e n t t h a t y ou have reached with the State in y our case. According to y our petition, y ou’ll be sentenced to serve 20 y ears with the Mississippi Departm e nt of Corrections, o f which y ou will be required t o serve one y ear and one day

. The rem ain i n g 1 8 y ears, 364 day s will be suspended, f ollowed by

f ive y ears of

supervised post-release supervision. . . .

. . . . Now is that y our understanding of the f ull and com

plete plea bargain y ou’ve reached with the State and y our understanding of how it works?
A. Yes, sir. ¶4. The cou r t a c c e p t ed Mosley ’s guilty plea and sentenced him in a ccordance with his plea bargain with the State. The court’s sentencing order set f orth the term s and conditions of Mosley ’s post-release supervision (PRS), including that h is PRS could be revoked if he

com m itted a crim inal of

f ense, possessed a f

i rearm , used d

rugs, or f ailed to m ake pay

m ents on f ines im posed and court costs assessed as part his sentence.

2¶5. In April 2012, Mosley was placed on PRS. In Novem b er 2012, a petition to revoke Mosley ’s P RS was f

iled. T he petition alleged that Mosley had violated the conditions of his
PRS b y possessing m arijuana w ith the intent to distribute, possessing a f irearm , and f

ailing

to pay court costs, am on g o t h e r t h i n gs. The circuit court subsequently held a revocation hearing, revoked Mosley ’s PRS, and ordered Mosley to serve t he rem aining eighteen y ears and 364 day s of his sentence in the c u s t o d y o f the Mississippi Departm ent of Corrections. ¶6. O n October 15, 2014, Mosley f iled a PCR m otion. H e argued that by revokin g h i s PRS and ordering him

to serve the f

ull suspended portion o f his sentence, the circuit court ef f ectively set aside his o riginal sentence and im posed a new sentence. Mosley argued that this v iolated double jeopardy

. On October 21, 2014, the circuit court sum m a rily dism issed Mosley ’s PCR m otion. See Miss. Code Ann. § 99-39-11(2) (Rev. 2015). ¶7. Mosley did n ot f

ile a t im e ly notice of a

p peal. Instead, m ore than eight m onths later, he f iled a m otion f

or relief f rom judgm ent pursuant to Mississippi Rule of Civil Procedure 60(b)(6). In his Rule 60(b) m otion, M osley essentially reiterated the argum ent advanced in
h i s P CR m otion. O n February 3, 2016, t he circuit c ourt d enied Mosley ’s mo t i o n . O n February 22, 2016, Mosley

f iled a notice of a

p peal.
DISCUSSION ¶8. Mosley did n ot f

ile a t im e ly notice of appeal f rom the d enial of h is P CR m otion. He appealed f

rom the denial of his Rul e 6 0 ( b ) motion. Accordingly , our review is lim ited to whether the circuit c ourt p roperly denied the Rule 60(b) m otion, and we apply an abuse of discretion standard of review. D avis v. State , 146 So. 3d 1033, 1035 (¶5) ( Miss. Ct. App.

32014); Beeks v. State , 130 So. 3d 163, 165 (¶7) (Miss. Ct. App. 2014).

¶9. Motions f

or r elief u n der Rule 60(b)(6) are reserved f or “extraordinary and com pelling circum stances.” Sanders v. State , 149 So. 3d 541, 543 ( ¶ 5 ) (Miss. Ct. App. 2 014). Such
“m otions should be denied where they are m erely an attem pt to relitigate the case” and are
“not to be used as a substitute f or a ppeal.” Id. Mosley ’s Rule 6 0(b) m o tion sim ply reargued the m erits of his PCR m otion, w hich had been denied eight m onths earlier. Accordingly , the

c i r cuit court p roperly d e nied Mosley ’s Rule 60(b) m otion. If Mosley wanted to f urther litigate t he issue raised i n his P CR m otion, h e sh o u l d h a v e f i l ed a tim ely m otion under Mississippi Rule of

Civil Procedure 59 and/or a tim ely notice of appeal. ¶10. Notwith s t a n d i n g M o s l e y ’s f ailure to appeal t he denial of h is PCR m otion, we also

note that this Court has rejected a n esse n t i a l l y i d entical c l aim o n the m erits. On appeal, Mosley a sserts that when he pled guilty , it was h is “understanding that only the [ P RS] portion of his sentenc e w o u l d b e r evoked upon the violation of any condition of h is release.” In other words, Mosley m aintains t hat when he pled guilty , he believed t hat no m ore than f ive
y ears of his suspended sentence would be i m p osed if he later v iolated a condition of his PRS. Mosley argues that “under these circum stances it w as unconstitutional” f or the circuit court
to i m pose the f ull suspended portion of his sentence, i .e., e ighteen y ears and 3 64 day s. In

m aking this argum ent, M osley relies on the f ollowing l anguage in his original s e ntencing order: “Failure to abide by any one o f t h e s e c o nditions is suf f icient to revoke the [ PRS] portion of this order.” ¶11. In a prior case, the petitioner argued t h a t t h i s s a m e language p recluded the circuit

4court f

rom im posing the f

ull suspended portion of his original s entence. Moffite v. State , 129
So. 3d 227, 229 (¶6) ( Miss. Ct. App. 2013). W e explained that the petitioner’s contention

was sim ply “m istaken.” Id. The circuit court was authorized to im p ose the f ull suspended portion o f Mosley ’s sentence once it determ ined that he had violated the term s of his PRS.
See id. at 229-30 (¶7). 1 Nothing that was said to M osley during his plea hearing w ould have justif i ed a ny dif

f erent “understanding” on his part. Theref ore, the claim in Mosley ’s original
PCR m otion was without m erit, so the c ircuit court certainly did not abuse its d iscretion by deny ing a belated Rule 60(b) m otion that sim ply reargued that sam e claim

. ¶12. THE JUDGMENT O F THE CIRCUIT COURT OF LAUDERDALE COUNTY IS AFFIRMED. ALL C OSTS OF THIS APPEAL A R E ASSESSED TO LAUDERDALE COUNTY. LEE, C .J., I R

V I N G A N D G R I F F I S , P . J J . , B A R N E S , I S H E E , CARLTON, FAIR, JAMES AND GREENLEE, JJ., CONCUR.

1 A t th e tim e M o s ley ’s P R S w as rev o k ed , M ississip p i C o d e A n n o tated “S ectio n 4 7 -7

- 3 7 au th o r ized a c ircu it co u r t to p u n ish a v io latio n o f th e co n d i tio n s o f [ P R S ] b y ‘im p o s[ in g ] an y p art o f th e sen t en ce w h i ch m ig h t h a v e b e e n im p o sed at th e tim e o f co n v ictio n .’” A t w o o d v. S t

a te , 1 8 3 S o . 3 d 8 4 3 , 8 4 5 (¶6 ) (M iss. 2 0 1 6 ) (q u o tin g M iss. C o d e A n n . § 4 7 -7 -3 7 (R ev . 2 0 0 6 ) ). S ectio n 4 7 -7 -3 7 w as am en d ed af ter M o sley ’s P R S w as r ev o k e d , see id

. , b u t th o se am en d m en t s d o n o t ap p ly to M o sley ’s case.

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