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IN THE SUPREME COURT OF MISSISSIPPI NO. 96-KP-00686-SCT VIRGIL KIRBY 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: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: 5/15/96 HON. JOHN M. MONTGOMERY LOWNDES COUNTY CIRCUIT COURT PRO SE OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE FORREST ALLGOOD CRIMINAL - POST CONVICTION RELIEF AFFIRMED - 10/2/97 10/23/97

DISTRICT ATTORNEY: NATURE OF THE CASE: DISPOSITION: MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ. ROBERTS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE This case comes before the Court on appeal filed by Virgil Kirby claiming error on the part of the lower court for denying his Motion for Post-Conviction Relief. Kirby pled guilty on February 10, 1993, to the charges of sale of cocaine and possession of cocaine with intent to distribute. He was sentenced to two thirty-year terms of incarceration to be served consecutively. On January 17, 1996, Kirby filed his Motion for Post-Conviction Relief in the Circuit Court of Lowndes County. His motion was denied without an evidentiary hearing on May 15, 1996. Aggrieved from the disposition of his motion in the lower court, Kirby has appealed to this Court raising the following:

I. WHETHER PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. II. WHETHER PETITIONER'S GUILTY PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY MADE. III. WHETHER THE LOWER COURT ERRED BY DENYING PETITIONER'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING. STATEMENT OF FACTS On May 6, 1992, Kirby was indicted by the Grand Jury of Lowndes County in cause number 12, 458 for the sale of cocaine. Kirby made a hand-to-hand sale to an individual for the sum of $200. On November 5, 1992, Kirby was indicted by the Grand Jury of Lowndes County in cause number 92511-CR1 for possession of cocaine with the intent to distribute that substance to others. The indictment numbered 92-511-CR1 also contained a charge of recidivism pursuant to Miss. Code Ann.

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