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Tunstall v. State

April 02, 1998

TUNSTALL
v.
STATE



Before Sullivan, P.j., Banks And Mills, JJ.

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

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

MANDATE ISSUED: 01/22/97

HON. GEORGE B. READY DESOTO COUNTY CIRCUIT COURT JAMES D. FRANKS OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STEWART ROBERT L. WILLIAMS CIVIL - POST CONVICTION RELIEF REVERSED AND REMANDED

The appellant, Tunstall, entered a plea of guilty to possession of cocaine with intent to distribute in the Circuit Court of Desoto County, Mississippi on July 10, 1991. The Court sentenced Tunstall to a fifteen year term with the last eleven years being suspended "pending good behavior." The State filed a Petition to Revoke Suspended Sentence on May 31, 1996, which stated that Tunstall was arrested on or about September 25, 1995, and charged with Disorderly Conduct, Possession of a Firearm by a Convicted Felon, and Possession of Cocaine. On October 17, 1996, the court entered its Order Revoking Tunstall's eleven year suspended sentence for his earlier conviction.

Tunstall filed a Motion for Post-Conviction Relief in the Circuit Court of DeSoto County on November 22, 1996, asserting that he was not placed on probation in the manner required by Miss. Code Ann. 47-7-33 (1972). The order denying relief on January 22, 1997, was entered pursuant to Miss. Code Ann. 99-39-11 (2) as no hearing was held on the motion, and no answer or other pleading was required from the State. It is from this order that Tunstall appeals and raises the following issue: I. DID THE TRIAL COURT ERR IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF BY FINDING THAT SAID MOTION DOES NOT STATE A CLAIM FOR RELIEF UNDER CURRENT CASE LAW EVEN IF THE ALLEGATIONS MADE IN SAID MOTION ARE TRUE?

STATEMENT OF THE LAW

The language of the controlling statutes seems to mandate that when a circuit court Judge decides to suspend the execution of part of a sentence he must place the defendant on probation. The pertinent part of Miss. Code Ann. § 47-7-33 which empowers the circuit court to suspend a sentence reads:

such court... shall have the power, after conviction or a plea of guilty, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided... In placing any defendant on probation, the court, or Judge, shall direct that such a defendant be under the supervision of the department of corrections...

Miss. Code Ann. § 47-7-33 (1993) (emphasis added). This statute allows a circuit court to place a defendant on probation in certain situations as long as he does not have a prior felony conviction. Hamlin v. Barrett, 335 So. 2d 898, 900 (Miss. 1976). Also, Miss. Code Ann. states, "[t]he courts referred to in § 47-7-33 shall determine the terms and conditions of probation and may, at any time during the period of probation, alter or modify the conditions....Miss Code Ann. § 47-7-35 (1993) (emphasis added). Furthermore, in reference to an arrest for a violation of probation, Miss. Code Ann. § 47-7-37 provides in part The period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or Judge in vacation. Such period with any extension thereof shall not exceed five (5) years... At any time during the period of probation the court, or Judge in vacation, may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the probationer to be arrested.... If the probationer is arrested in a circuit court district in the State of Mississippi ... the probation and parole officer, shall furnish.. a report concerning the probationer, and such court or the judge in vacation shall have authority, after a hearing, to continue or revoke all or any part of probation or all or any part of the suspension of sentence and may in case of revocation proceed to deal with the case as if there had been no probation. The arrest, revocation and recommitment procedures of this section also apply to persons who are serving a period of post-release supervision imposed by the court.

Miss Code Ann. § 47-7-37 (Supp. 1997). It necessarily follows that if Tunstall was not placed on probation, then the Circuit Court of Sunflower County was without authority to revoke his suspended sentence.

This Court has already interpreted the language of these specific statutes, Artis v. State, 643 So. 2d 533, 536-37 (Miss. 1994). However, in Artis, it was unnecessary to address the particular issue brought before the Court in this appeal because the Court in Artis determined that the defendant was not given any conditions upon which his suspended sentence was contingent, and therefore his due process rights were violated. Id. at 538. However, the Court did state,

We find pursuant to the foregoing Code sections that the normal course of procedure, when the court exercises its authority to suspend the execution of a portion of a defendant's sentence, is as follows: (I) impose a sentence; (2) determine what portion is to be suspended; (3) impose a period of probation (up to five years); and, (4) specify the terms and conditions upon which the probationer/suspended sentence is contingent. Then, any time during the period of probation ... if upon hearing it is determined that the probationer violated any of the specified conditions of his probation, the court has the authority to revoke any part or all of the probation or any part or all of the suspended sentence, as if they decision to suspend the sentence and place the defendant on probation had never been made.

Artis v. State, 643 So. 2d at 537 (emphasis in original). If Tunstall was not placed on probation, as he alleges, then the circuit court did not follow the proper procedures as explained ...


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