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01/29/98 JOSEPH WALTON v. STATE MISSISSIPPI

JOSEPH WALTON
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT: 12/29/95 TRIAL JUDGE: HON. HENRY LAFAYETTE LACKEY COURT FROM WHICH APPEALED: MARSHALL COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JOHN BOOTH FARESE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. DISTRICT ATTORNEY: LAWRENCE L. LITTLE NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF DISPOSITION REVERSED - 11/06/97 MOTION FOR REHEARING FILED: 11/21/97 MANDATE ISSUED:

The opinion of the court was delivered by: McRAE, Justice, For The Court:

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A

EN BANC.

The original opinion in this case is withdrawn and this opinion is substituted therefor.

We are asked to determine whether the circuit court below erred in revoking the suspended sentence of Joseph Walton after he was found guilty of selling a controlled substance. Because Walton had been released unconditionally from the state penitentiary, we find that the circuit court could not revoke Walton's suspended sentence based on violation of terms and conditions. Accordingly, we reverse the circuit court's decision.

I.

On August 29, 1983, Joseph Walton pleaded guilty to armed robbery and was sentenced to fifteen years in the state penitentiary at Parchman, with ten years suspended. Walton served just under five years and was released on November 24, 1987. On March 28, 1988, Walton was indicted by a Marshall County Grand Jury for selling a controlled substance. After a two-day trial, Walton was convicted of the crime on November 16, 1989.

On April 25, 1990, the State filed a petition to revoke Walton's suspended sentence, asking that Walton be ordered by the Court to serve the remainder of his suspended sentence under the charge of armed robbery, for which he served nearly five years in Parchman. After a hearing on November 5, 1990, the lower court sustained the State's motion, reinstating Walton's sentence to imprisonment for the "suspended" ten years of sentence imposed when Walton pleaded guilty to armed robbery.

This Court dismissed Cause No. 90-KA-01252, Walton's appeal of the revocation of his suspended sentence, without prejudice on November 30, 1995, finding that no authority existed for an appeal of a revocation order directly to the Court. Pursuant to the revocation of suspended sentence, Walton correctly filed a petition for post-conviction relief in the lower court; he also filed a motion to vacate and set aside judgment. After denial of his petition for post-conviction relief and motion to vacate and set aside judgment by the lower court, Walton moved this Court to incorporate the entire record of 90-KA-01252 into this appeal, No. 96-KA-00085. The Court granted the motion on March, 27, 1996. Walton's sole issue on appeal is whether the circuit court below erred in denying his motion to vacate and set aside judgment revoking his suspended sentence. *fn1

II.

Walton alleges that because his suspended sentence was imposed after the five years allowed by statute, because the suspended sentence lacked the finality of stated conditions upon which it could be revoked, and because it expanded the Judge's authority beyond the parameters of the Pardon and Parole Act, his suspended sentence was void ab initio. The State responds that the sentence was properly revoked because Walton committed a crime almost immediately upon his release from prison. In the alternative, the State argues that even if Walton's sentence was void ab initio, only the invalid portion of his sentence should be removed.

Mississippi recognizes the power of the court to suspend part of a convicted felon's sentence. Circuit courts have the power, after conviction or guilty plea, to suspend the imposition or execution of sentence, and place the defendant on probation; further, in placing any defendant on probation, the court, or Judge, shall direct that the defendant be under the supervision of the department of corrections. Miss. Code Ann. § 47-7-33 (1993). The court must determine the terms and conditions of probation, and may, at any time during the probationary period, modify the conditions. Miss. Code Ann. § 47-7-35 (1993). The court must determine the period of probation and, though the period may be extended or terminated by the court at any time, the period, along with any extensions, must not exceed five years. Miss. Code Ann. § 47-7-37 (1993).

Because there is no transcript of Walton's guilty plea colloquy, this Court does not know whether the trial Judge, at the time of the plea, alluded to what might constitute grounds for revocation of Walton's suspended sentence. Nonetheless, Walton asserts that he was not on parole or required to report to a probation officer. Moreover, District Attorney Lawrence Little agreed that Walton was not on parole and that he "flat-timed" the five year portion of his sentence for armed robbery. Neither the judgment of sentence on Walton's guilty plea nor the notification of Walton's release from Parchman indicates that Walton was on parole or require to undergo a probationary period upon release. Therefore, we assume that Walton was released from prison without any definite restrictions on November 24, 1987.

This Court has recently addressed the problem of a trial Judge suspending a portion of a defendant's sentence, without giving probation or mentioning terms and conditions of the suspended sentence, and later revoking the suspended sentence. In Artis v. State, 643 So. 2d 533 (Miss. 1994), the defendant pleaded guilty to armed robbery and manslaughter in 1981. Artis was sentenced to twenty-five years imprisonment for armed robbery with twenty years suspended and twenty years for manslaughter with fifteen years suspended, leaving Artis bound to serve five years concurrently for each crime. The trial ...


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