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Atwell v. State4/22/2003
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 04/22/2003
. Mel Atwell appeals the denial of his petition for post-conviction relief, assigning numerous points of error. For the reasons discussed below, we affirm the circuit court.
FACTS
. Mel Atwell was indicted on a charge of felony driving under the influence . On June 8, 2000, Atwell entered a plea of guilty to the charge and received a five year suspended sentence with two years' post-release supervision. A provision of the sentencing order permitted Atwell to transfer his supervision to either Tennessee or Georgia, if he was accepted by one of those states.
. Atwell reported to his probation officer on June 9, 2000, but never reported again. The Department of Corrections twice petitioned for revocation of Atwell's suspended sentence. The first petition was filed August 11, 2000, for failure to report to his probation officer. The second petition, filed May 31, 2001, also asked for revocation based on failure to appear. It also gave as grounds that he had left the state without permission and had acquired two more DUI arrests, one in Biloxi and one in Paducah, Kentucky. Following Atwell's apprehension, a revocation hearing was held before the same trial judge as had sentenced him. Atwell admitted in open court to having violated the terms of his suspended sentence. The suspension was revoked in its entirety.
. Atwell first filed for post-conviction relief on September 22, 2001. The petition was returned to him two months later for failing substantially to comply with the statutory pleading requirements. Also in August 2001, Atwell filed for a writ of habeas corpus in the District Court for the Southern District of Mississippi. The federal court dismissed the petition without prejudice for failing to exhaust available state remedies. Atwell also later filed a civil rights violation suit against the State of Mississippi in the District Court of the Eastern District of Tennessee. This was also dismissed.
. Atwell resubmitted his petition to the Harrison County Circuit Court on August 13, 2002. On September 6, 2002, the court ruled that each of Atwell's claims was without merit. He dismissed the petition. It is from this order that Atwell now appeals.
DISCUSSION
1. The felony charge
. Atwell asserts that he was never charged with a prior felony DUI and should not have been charged with a third-offense felony. He also argues the lower court erred in permitting the State to use two out-of-state DUI convictions to establish the predicate for the felony charge. He also alleges that one of the prior convictions was more than five years old at the time of his conviction and could not be used to establish the third offense felony charge.
. The felony DUI statute states that for "any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five years, such person shall be guilty of a felony." Miss. Code Ann. § 63-11-30(2)(c) (Rev. 1996). It is not required that the predicate convictions be felonies, only that they be convictions for driving under the influence within the past five years. Atwell had been twice convicted of driving while intoxicated in the State of Georgia, on October 19, 1995, and October 7, 1996. Both of these prior convictions were within the required five-year period to sustain the felony charge in June 2000.
. The fact that the prior convictions occurred in another state does not affect the felony status of Atwell's crime. This statute specifically permits out-of-state convict
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