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TERENCE ITTIS TROTTER v. STATE OF MISSISSIPPI

NOVEMBER 29, 1989

TERENCE ITTIS TROTTER
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, SULLIVAN AND ANDERSON.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Lauderdale County, Mississippi, where appellant, Terence Ittis Trotter, pled guilty to two counts of burglary. In an order deferring sentencing, the trial court imposed certain" probation-like "conditions. More than four years later, Trotter was sentenced to two concurrent two-year terms in the custody of the Mississippi Department of Corrections. Finding that the extreme delay in sentencing violated Trotter's Sixth Amendment right to a speedy trial under the particular circumstances of this case, we reverse.

STATEMENT OF THE FACTS

 On June 15, 1983, Terence Trotter entered pleas of guilty to

 two counts of burglary. At that time, Trotter was 18 years of age and had completed the eleventh grade of school and part of the twelfth grade. The Circuit Court of Lauderdale County accepted Trotter's guilty pleas, but deferred sentencing. On August 26, 1983, Trotter appeared for sentencing and the trial judge entered an order deferring sentencing until December 2, 1983. On December 2, 1983, the trial judge entered an order again deferring sentencing until December 12, 1984. This order, however, imposed certain" probation-like "conditions, as follows:

 (1) The Defendant is to remain at home at night. The Defendant is to go to Detroit to live with his parents.

 (2) The Defendant shall make an accounting each day showing who he worked for and how much his employer agreed to pay him.

 (3) The Defendant must pay one-half (1/2) of [his] earnings each week to the Circuit Clerk so that it can be used for Court costs, restitution to the victim or attorney's fee, if the Court has appointed an attorney.

 (4) The Defendant must abstain from drinking alcoholic beverages or using any illegal drugs prior to sentencing.

 (5) The Defendant is to report back to the Court on December 7th, 1984.

 The trial judge's order also included the following declaration:

 Unless the Defendant has a legal or lawful excuse, a failure to perform any of the above conditions will result in a penitentiary sentence.

 (R. 14)

 The record does not reflect any further activity in the case until July 8, 1987 - four years after Trotter's previous appearance before the court - when the Assistant District Attorney filed a motion requesting a sentencing date on the two causes. In the meantime, Trotter had completed high school and served almost two years in the U.S. Army, receiving an honorable discharge. The fact that Trotter had never been sentenced was brought to the District Attorney's attention only when Trotter was arrested on a charge of possession of cocaine, upon which charge Trotter was never indicted or tried.

 On August 3, 1987, a sentencing hearing was held. After a full hearing in which Trotter contested the imposition of

 sentence, Trotter was sentenced to serve two years on each of the two burglary charges, the sentences to run concurrently.

 From that sentence, Trotter appeals, claiming that the delay of more than four years in sentencing him violated his fifth amendment right to due process and his sixth amendment right to a speedy trial. He also claims that the delay in sentencing violated certain provisions of the Mississippi Constitution, as well as Rule 6.01 of the Mississippi Uniform Rules of Circuit Court Practice.

 A preliminary point needs to be addressed. The State contends that this appeal should be dismissed for lack of jurisdiction because Trotter pleaded guilty to the charges against him. The State cites Miss. Code Ann. 99-35-101 (1972), which states:

 Any person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.

 In Burns v. State, 344 So. 2d 1189 (Miss. 1977), this Court implied that an appeal from a sentence imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself. In Burns, an appeal from denial of a habeas corpus petition challenging the legality of a sentence imposed subsequent to a guilty plea was treated by this Court as a direct appeal. While the Court acknowledged the language of 99-35-101, the Court stated:" [W]e do not deem the present case as an appeal from a guilty plea. "Burns, 344 So. 2d at 1190.

 Now, to the merits of the appeal.

 DID THE TRIAL COURT ERR IN SENTENCING TROTTER MORE THAN FOUR YEARS AFTER ENTRY ...


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