IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-CP-01510-COA ANDRE J. JONES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/06/2017 TRIAL JUDGE: HON. DAL W ILLIAMSON COURT FROM W HICH APPEALED: JONES COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: ANDRE J. JONES (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED: 12/11/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ. TINDELL, J., FOR THE COURT :

FACTS AND PROCEDURAL HISTORY ¶1. A Jones C o u n t y j u r y f o u n d A n d r e J o nes guilty of m urder, and the circuit court sentenced Jones to lif

e im prisonm ent i n the custody o f t he Mississipp i D epartm ent of Corrections. T he Mississippi Suprem e Court c o nf irm ed Jones’s c onviction and sentence in Jones v. S

tate , 39 So. 3d 860, 8 68 ( ¶42) (Miss. 20 1 0 )

. S ince t hen, Jones has f iled six applications with the suprem e court requesting leave to f ile a post-conviction r elief (PCR)

m otion w i t h the c ircuit court. The suprem e c o urt denied the f irst application on April 4, 2011. The suprem e court d ism issed f ive subsequent applications a s u ntim ely o r successive.¶2. Nine y ears af ter his conviction, J ones f iled a “Motion f

or P r o d uction of Biological Evidence” with the circuit court on October 6 , 2 0 1 7 , and r equested the State produce: (1) inventory of biological evidence preserved i n connection with his crim inal case; (2) any results of reports or scientif ic tests or experim ents connected with that evidence; and (3) certif i ed copies of any results f r om the testing, an a l y s i s , o r com parison of any biological evidence. The circuit court considered Jones’s m o tion t o be a P CR m otion. B ecause the
suprem e court af

f i rm ed Jones’s conviction o n direct appeal, and Jones f ailed to o btain leave
to f ile a PCR m otion, t he c ircuit court f ound it lacked jurisdiction to consider Jones’s m otion. The circuit court theref

ore dism issed the m otion. ¶3. On appeal, Jones asserts the circuit c ourt e rred (1) in t reating h is m otion as a P C R f iling and (2) by dism issing h is m otion f or l ack of jurisdiction. Finding no e rror, we af f irm the circuit court’s dism issal of Jones’s m otion. STANDARD OF REVIEW ¶4. W e declin e to reverse a c ircuit court’s dism issal of a PCR m o tion unless the circuit court’s decision was clearly erroneous. Thompson v. State , 10 So. 3d 525, 527 (¶3) (Miss. Ct. App. 2009). W e review issues of law de novo. I

d. DISCUSSION ¶5. Jones f

iled a m otion with the circuit court f o r the production of biological evidence that w as used in c onnection with h i s c onviction. He is not challenging his conviction or sentence, just the dism issal of his m otion f o r production. The su p rem e court has held that

“ p l e a d i n g s c o g n i z a

b l e u n d e r the Unif

orm Post Conviction Collateral Relief A ct [ (UPC C R A ) ]

2will be treated as . . . m o tions f or [ PCR] that are subject to the procedural rules prom ulgated therein, regardless of how t he plaintif f has d e n om inated or characterized the pleadings.” May v. State , 116 So. 3d 1107, 1109 (¶4) (Miss. Ct. App. 2013) (quoting Knox v. State , 75 So. 3 d 1030, 1035 (¶12) ( M i ss. 2011)). In M ay , May f iled a m otion with the circuit court requesting th e p r o d u c t i on of docum ents f rom h is court proceeding. Id. at 1 108 (¶3). The ci r c u i t c o u r t interpreted May ’s m otion as a PCR m otion and d ism issed it. Id. Sim ilar to May , Jones’s m otion f

or the production of biological evidence is subject to the UPCCRA’s procedural rules. Though titled a mo t ion f or the production of biological evidence, in his

m otion, Jones states that he is requesting the evidence based of f o f his in d i c t me n t

. T h us, Jones’s f iling am ounts to a PCR m otion that seeks to circum v ent t he suprem e c ourt’s earlier denial of such relief

, and the circuit court correctly dism issed it. ¶6. F urther, Jones did not have perm ission f r om the suprem e court t o f ile h i s c u r r e n t

m otion. Under M ississippi Code Annotated section 9 9-39-7 (Rev. 2015), a prisoner cannot f ile a PCR m otion without perm ission f rom the suprem e court if

that prisoner’s conviction has previously b een af

f irm ed by the court on appeal. Additionally , a circuit cou r t l a c k s j u r i s diction if the petitioner f ails to request the suprem e c ourt’s perm i ssion to f i l e a P C R

m otion. Cortez v. State , 9 So

. 3 d 4 4 5 , 446 (¶6) (Miss. Ct. A pp. 2009). In M inor v. State , Minor’s conviction was af f irm ed by this Court on d irect appeal. Minor v . State , 186 So. 3d 437, 438 (¶2) (Miss. C t. App. 2 016). Theref o re, Minor sought perm ission t o f i le m ultiple PCR m otions, but the suprem e c ourt repeatedly denied perm ission. Id. a t ( ¶3). M inor then f iled a m o tion t o com

pel t he Mississippi Crim e Laboratory to produce evidence f ound at the

3crim e scene. Minor , 186 So. 3d at 439 (¶4). However, t he circuit c ourt lacked jurisdiction

because Minor did not f ile his m otion t o c o m

p e l a s a PCR m o tion and did not seek
perm ission f

rom the suprem e court bef ore f iling his m otion; thus, the circuit court dism issed it. Id. Here, sim ilar t o Minor , t he suprem e court af f irm ed Jones’s c onviction on direct appeal i n 2010. Jones then f iled num erous u nsuccessf ul requests with the suprem e court f or perm ission to f

ile a PCR m otion. However, without p erm ission f rom the suprem e court to f ile his current m otion, the circuit court lacked jurisdiction to consider it. Thus, the circuit court properly

denied the m o tion f

or lack of jurisdiction. ¶7. There are circum s tances under which a prisoner m a y be entitled to certain transcripts and docum entation. U nder the UPCCRA, a prisoner, who shows g ood cause and with the discretion of

the circuit court, m ay

be entitled to t rial transcripts and o ther docum ents if he f iled a proper m o tion that “withstood sum m ary dism issal.” Fleming v. State , 553 So. 2d 505, 506 (Miss. 1989). However, the suprem e court has stated: [ N]othing i n the [ UPCCRA] or elsewhere gives a prisoner the right to institute an independent, o riginal action f or a f ree transcript o r o t h e r docum ents, and then if dissatisf

ied with the trial court' s ruling, t o directly appeal that ruling to this court as a separate and independent action. Id

. In Fleming , Flem ing did not request the p roduction of d ocum ents with a P CR m otion or

on direct appeal. Id. at 505. Instead, Flem ing f iled an independent m otion with t he circuit
court and asked f

o r the production of

the sentencing transcript and other c ourt records. Id. Overall, t he circuit court “denied” Flem ing’s m otion f or the production o f docum ents. Id.

at 506. Like Flem ing, Jones f i l e d h i s mo t i on f

or the production o f biological evidence separate f rom a PCR m otion a nd not as p a r t o f a direct appeal. None of J ones’s previous

4PCR m otions withstood sum m ary dism issal; as a result, Jones is now seeking an independent

action f or a f ree copy of biological evidence. Thus, Jones is not enti t led to the production of the docum ents. CONCLUSION ¶8. The circuit court correctly interpreted Jones’s m otion as a P CR m otion and dism issed it. Even though Jones states he is not f iling a PCR m otion or challenging his conviction or sentence, as a prisoner he is not entitled to the production of d o c u m e n t s through an independent civil action separate f rom a direct appeal or a PCR m o tion. Further, the circuit
court lacked jurisdiction to consider Jones’s m otion because he never sought the suprem e court’s perm ission t o f

ile such relief

. W e theref

ore a f f i rm the c i rcui t c o u r t ’ s d i sm issal of Jones’s m otion f

or production of

biological evidence. ¶9. AFFIRMED. LEE, C.J., IRVING AND GRIFF I S , P.JJ., CARLTON, F AIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES. J., C O N C U RS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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