                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 95-KP-00186-SCT
ROY SMITH a/k/a ROY VERNON SMITH
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:                                01/25/95
TRIAL JUDGE:                                     HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:                       ATTALA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          PRO SE
ATTORNEY FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL

                                                 BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY                                DOUG EVANS
NATURE OF THE CASE:                              CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                     AFFIRMED - 4/10/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




     BEFORE DAN LEE, C.J., McRAE AND SMITH, JJ.

     SMITH, JUSTICE, FOR THE COURT:




Roy Smith prays for relief from the judgment of the Attala County Circuit Court denying post
conviction relief on the grounds that he was tricked by his attorney and the county sheriff into
pleading guilty to two counts of murder. Smith asserts that he was promised that he would serve ten
years in the county jail, but that a short time later he was transferred to Parchman. Smith asserts that
had he known that he would be sent to Parchman upon being found guilty, he would have proceeded
to trial. This Court finds no merit to the issue presented and therefore affirms the finding of the trial
court per curiam.

                                                FACTS

On August 23, 1991, Roy Vernon Smith plead guilty in open court to the murders of Billy Ray King
and Maxine P. Newsome. He was sentenced to serve two concurrent terms in the Mississippi
Department of Corrections. It is Smith's claim that the only reason that he pled guilty is because he
was promised by his attorney and by the county sheriff that he would serve the duration of his term in
the county jail as a trusty and never go to Parchman. In July, 1992, Smith was taken to Parchman for
medical treatment, and placed in the general population.

On August 27, 1994, Smith filed this action, claiming that his plea of guilty was not knowingly,
intelligently, and voluntarily entered into, and that he was denied effective assistance of counsel
within the meaning of the Sixth Amendment of the Constitution of the United States. On January 25,
1995, the circuit judge entered an order denying post conviction relief, stating as his reason that the
motion was time-barred. Aggrieved, Smith appeals.

                                      STANDARD OF REVIEW

This Court will not set aside findings of a trial court sitting without a jury unless such findings are
clearly erroneous. Schmitt v. State, 560 So. 2d 148, 151 (Miss. 1990).

                                       DISCUSSION OF LAW

Smith cites two issues for the Court's consideration. Because of the disposition of the first, we find it
unnecessary to consider the second.

                                                    I.

WHETHER THE TRIAL COURT ERRED IN SUMMARILY DISMISSING SMITH'S POST
CONVICTION CLAIMS WITHOUT AN EVIDENTIARY HEARING.

Miss.Code Ann. § 99-39-5(2) (Supp. 1996) allows a defendant three years after the entry of an order
of conviction in which he may attack his conviction and ask for an evidentiary hearing. Smith filed his
appeal on August 27, 1994, four days past the statutory deadline for appealing a conviction under a
plea. Accordingly, the trial judge summarily dismissed Smith's motion to vacate his conviction and
sentence.

Smith contends that the date of conviction is not the relevant date. Rather, it is his position that the
statute of limitations was tolled on the date that the state broke its agreement, which would have
been July, 1992. Therefore, according to Smith, he still had time to file his appeal.

Miss.Code Ann. § 99-39-5(2) lists several exceptions to the three year limitation. Among these are:
(1) an intervening decision of either the Mississippi Supreme Court or the United States Supreme
Court which would have adversely affected the outcome of his conviction or sentence; (2) evidence,
not reasonably discoverable at the time of his plea, which is of such a nature that it almost
conclusively would have changed the outcome of a conviction or sentence; (3) the prisoner claims
that his sentence has expired or that his probation, parole, or conditional release has been revoked. In
this case, there has been no intervening decision which would be sufficient to adversely affect the
outcome of Smith's guilty plea. Neither has there been any new evidence presented which would
change the outcome of the sentence or the conviction. Finally, Smith's sentence has not expired, and
he is not currently on probation, parole, or conditional release. Thus, this Court finds that Smith's
appeal was procedurally barred. As a result, the balance of the issues cited by Smith are moot.
                                           CONCLUSION

This Court finds that the trial court did not err in summarily dismissing Roy Smith's claims in that
they were time-barred. Therefore the judgment of the trial court should be affirmed.

DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

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