BEFORE BROOM, DAN LEE AND PRATHER
BROOM, PRESIDING JUSTICE, FOR THE COURT:
Probation terms and their constitutionality are at issue in this appeal from the Circuit Court of Stone County, the Honorable J. Ruble Griffin presiding. Wallace W. Cobb, defendant, pled guilty to the charge of aggravated assault: shooting his brother's son. Sentence imposed by Judge Griffin was 12 years imprisonment. However, on January 15, 1982, the Judge suspended the sentence and put defendant Cobb on probation for five years conditioned that Cobb" leave Stone County "and stay" 125 miles . . . "away from the county. Additionally, the probation order permitted Cobb to" go to Stone County to take care of personal reasons [sic] "upon his notifying the sheriff upon such intentions. Other not unusual terms appear in the probation order.
Subsequently, on February 11, 1982, Cobb filed a motion to correct the sentence or modify it, asserting
[T]he provision requiring that your Petitioner leave Stone County, Mississippi, and remain at a distance of not less than 125 miles and that your Petitioner remain within Neshoba County, Mississippi, is a violation of the U.S. Constitution and specifically a violation of the First, Fifth and Fourteenth Amendments of the U.S. Constitution.
Supporting his motion, probationer Cobb presented the testimony of his wife, Mary Ann Cobb, who related the problems they were experiencing on account of her husband not being able to live in the household with her and their daughter. She testified that she had 24 years service with the U.S. Forestry Service, and was not able to transfer to where her husband might live in another locality because of an existing freeze on employment. She stated that her husband has a back injury and is living with relatives, but that their family has been torn apart. They live out in the country without close neighbors, and she is afraid after dark. She has lost weight and for her to go to Neshoba County, where her husband is presently residing, is too far and too expensive for her. Further, since the incident no problems have arisen between her husband and his brother.
Other testimony introduced by Cobb was given by his pastor, Rev. Elton Brown, minister of the First United Methodist Church in Stone County. He gave his opinion that should" Mr. Cobb be permitted to live at home "there would be no problem or danger created in the community. Reverend Brown thought it would be best if the Cobb family could live together. At the hearing of the motion, neither probationer Cobb, his brother or nephew testified.
First argument asserted is that" The two (2) conditions imposed on the sentence do not bear a reasonable relationship to the purposes of probation. "Cobb argues that any condition requiring separation from his family" bears no reasonable relationship to the purpose of probation "and should not be upheld.
Mississippi Code Annotated 47-7-35 (Supp. 1982) provides that courts shall determine the terms and conditions of probation and may order the probationer to" (g) Remain within a specified area; "In providing that probationer Cobb would remain 125 miles from Stone County, the record shows the following reasoning of the lower court:
I am going to require you to leave Stone County. And I want you to leave right away. Uh, Mrs. Cobb is from Neshoba County. I am not going to tell you that you've got to live in Neshoba County. The only thing I'm telling you is that you've got to stay out of Stone County. I want you to, uh, in order to, uh, to make sure it's that far away, I am going to impose the condition that you be gone by a week from today from Stone County a distance of not less than one hundred and twenty-five miles. I estimated in my mind that that's about how far it is from Wiggins to Philadelphia, uh, and that can be Neshoba County . . . .
Or any other County within that range. Of course, I assume that it's going to be, according to be, according to the pre-sentence report, it will be Neshoba County. That's where Mrs. Cobb is from
and I think that she has expressed some desire to return there. Uh, if she leaves and she's going to have to leave, if she stays with Mr. Cobb; that's it.
Cases cited by Cobb in his brief are factually distinguishable from the present case. We think the peculiar circumstances of this case justify the conditions complained of and do not show an abuse of discretion by Judge Griffin. According to the trial judge, the ends of justice and the best interests of the public as well as the defendant would be served by the suspension of sentence and imposition of the probation ...