IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00898-SCT

ANTOINE PLUMP

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: 05/14/96

TRIAL JUDGE: HON. FRANK G. VOLLOR

COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: PAT FLYNN

DISTRICT ATTORNEY: MARTIN G. GILMORE

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 11/6/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 12/1/97

BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

SMITH, JUSTICE, FOR THE COURT:

On July 13, 1995, Antoine Plump entered a plea of guilty to one count of armed robbery. Following a

guilty plea hearing, Plump was sentenced by the Warren County Circuit Court to six years, without

the eligibility for parole, in the custody of the Mississippi Department of Corrections. Plump was

additionally ordered into a drug and alcohol treatment program.

On December 5, 1995, Plump filed a petition for post-conviction relief in the Circuit Court of Warren

County. In his petition, Plump alleged that (1) his guilty plea was not voluntarily, intelligently, and

knowingly made; (2) he was not given a fair competency hearing; (3) he received ineffective

assistance of counsel; and (4) his right to a speedy trial was violated. The trial court summarily

dismissed the petition and denied relief. Plump now appeals to this Court from the denial of his

petition.
FACTS

On November 2, 1994, Antoine Plump was indicted for armed robbery by the Warren County Grand

Jury. On July 13, 1995, Plump withdrew his original plea of not guilty and entered a plea of guilty to

the crime of armed robbery. After a guilty plea hearing, the trial court accepted the guilty plea and

sentenced Plump to serve six years, without the eligibility for parole, in the custody of the Mississippi

Department of Corrections.

On December 5, 1995, Plump filed a Post Conviction Motion to Withdraw Guilty Plea and Set Aside

Sentence and Conviction. In his motion, Plump alleged that (1) his plea agreement and guilty plea

were not voluntarily, intelligently, and knowingly made because he had been diagnosed as

schizophrenic; (2) he was deprived of a full and complete competency hearing which allegedly would

have revealed that he was incompetent to stand trial; (3) he received ineffective assistance of counsel;

and (4) his right to a speedy trial was violated.

On May 14, 1996, the trial court dismissed Plump's Motion to Withdraw Guilty Plea and Set Aside

Sentence and Conviction and denied all relief. After reviewing the twelve page psychological report

and the transcript of the guilty plea hearing, the trial court found that Plump was not entitled to any

relief.

On June 26, 1996, Plump filed with the trial court his Notice of Appeal to this Court. However, on

August 1, 1996, Plump filed with the trial court a Notice of Withdrawal of Appeal to have his appeal

to this Court withdrawn or dismissed, but no action was taken on this motion by the trial court. Then,

on January 24, 1997, the clerk of the Supreme Court mailed notice to Plump that his appeal was

deficient in that it lacked an Appellant's Brief, and pursuant to Miss. R. App. P. Rule 2(a)(2), the

appeal would be dismissed if the deficiency was not corrected within 14 days. Plump filed his brief on

February 13, 1997.

Aggrieved, Plump appeals to this Court, citing the following issues:

I. WHETHER THE TRIAL COURT ERRED BY ENTERING INTO EVIDENCE THE

TESTIMONY OF STATE'S WITNESSES COLEMAN AND EDWARD.

II. WHETHER THE TRIAL COURT ERRED BY IMPOSING A TIME LIMITATION

AND LIMITING THE CROSS EXAMINATION OF COLEMAN AND EDWARD AS

TO THEIR PRIOR CONVICTIONS.

III. WHETHER THE TRIAL COURT DISCRIMINATED AGAINST PLUMP BY

ALLOWING THE STATE TO EXERCISE PEREMPTORY CHALLENGES FOR THE

PURPOSE OF STRIKING MEMBERS OF PLUMP'S RACE FROM THE JURY IN

VIOLATION OF BATSON V. KENTUCKY.

DISCUSSION OF LAW

I. WHETHER THE TRIAL COURT ERRED BY ENTERING INTO EVIDENCE THE

TESTIMONY OF STATE'S WITNESSES COLEMAN AND EDWARD.
II. WHETHER THE TRIAL COURT ERRED BY IMPOSING A TIME LIMITATION

AND LIMITING THE CROSS EXAMINATION OF COLEMAN AND EDWARD AS

TO THEIR PRIOR CONVICTIONS.

III. WHETHER THE TRIAL COURT DISCRIMINATED AGAINST PLUMP BY

ALLOWING THE STATE TO EXERCISE PEREMPTORY CHALLENGES FOR THE

PURPOSE OF STRIKING MEMBERS OF PLUMP'S RACE FROM THE JURY IN

VIOLATION OF BATSON V. KENTUCKY.

After reviewing in full the above issues, it is our conclusion that all of the above issues are without

merit. First, the issues raised by Plump on appeal were not raised before the trial court, and this

Court has repeatedly held that "[a] trial court cannot be put in error on a matter not presented to the

court for decision." Chase v. State, 645 So. 2d 829, 846 (Miss. 1994), cert. denied, 515 U.S. 1123

(1995); Jones v. State, 606 So. 2d 1051, 1058 (Miss. 1992); Crenshaw v. State, 520 So. 2d 131,

134-35 (Miss. 1988). Thus, Plump is procedurally barred from raising these issues on appeal.

Furthermore, even if these issues were raised before the trial court, they would have been found to be

without merit. All of the issues raised by Plump on appeal concern trial issues, and in the present

case, Plump entered a plea of guilty. Thus, there is no evidence in the record that a trial was held that

could provide a basis for these issues in a motion for post-conviction relief at the trial court level or

on appeal. This Court has stated:

We have on many occasions held that we must decide each case by the facts shown in the

record, not assertions in the brief, however sincere counsel may be in those assertions. Facts

asserted to exist must and ought to be definitely proved and placed before us by a record,

certified by law; otherwise, we cannot know them.

Wallace v. State, 607 So. 2d 1184, 1189 (Miss. 1992) (quoting Mason v. State, 440 So. 2d 318,

319 (Miss. 1983)). The record in this case reveals that the underlying events necessary to support the

issues raised by Plump never took place. As a result, we find all of the issues raised by Plump are

without merit.

Additionally, it is the opinion of this Court that Plump should not have been allowed to appeal the

decision of the trial court because his Notice of Appeal was not timely filed. Miss. R. App. P. Rule

4(a) provides that:

In a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from

a trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed with

the clerk of the trial court within 30 days after the date of entry of the judgment or order

appealed from.

Miss. R. App. P. Rule 4(a). In the present case, the trial court's order was entered on May 14, 1996,

and Plump did not file his Notice of Appeal until June 26, 1996. Therefore, this appeal should have

been dismissed pursuant to Miss. R. App. P. Rule 2(a)(1).

CONCLUSION

We affirm the trial court's denial of Plump's petition for post-conviction relief because all of the issues
raised by Plump on appeal are procedurally barred and, alternatively, all issues raised by Plump on

appeal are without merit.

DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS

AND MILLS, JJ., CONCUR.