Before Sullivan, P.j., Banks And Roberts, JJ.
The opinion of the court was delivered by: Banks, Justice,
DATE OF JUDGMENT: 11/18/96
TRIAL JUDGE: HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
DISPOSITION: AFFIRMED - 1/14/99
¶1. We have for review a petition for post conviction relief in which it is claimed that the wording of a re-sentencing order on remand revoked parole eligibility and subjected the defendant to multiple prosecutions and punishments for the same crime in violation of his Fifth Amendment right to be free from double jeopardy. We conclude that the trial court had no authority to revoke parole eligibility and did not do so and that the defendant was not subjected to multiple prosecutions or punishments. Accordingly, we affirm.
¶2. In 1991, Lawrence Brown ("Brown") was convicted of raping Toni Sue Davis. During the same trial Brown was also convicted of aggravated assault for threatening Toni Sue Davis' eight-year old daughter with a gun when she tried to come to the aide of her mother. The facts leading to Brown's conviction are further summarized in Brown v. State, 633 So. 2d 1042 (Miss. 1994), and reported in detail in the companion case of Davis v. State, 611 So. 2d 906 (Miss. 1992). There is no need to fully repeat the facts here.
¶3. Upon conviction, Brown was sentenced to twenty (20) years for rape and ten (10) years for aggravated assault to run consecutively. Brown, 633 So. 2d at 1042. On appeal this Court affirmed the rape conviction, but held that the evidence presented at trial was insufficient to support a conviction for aggravated assault. Id. at 1044. This Court further found, however, that the evidence was sufficient to support a finding that Brown had committed the lesser included offense of simple assault. Id. The case was remanded to the lower court for re-sentencing on a conviction of simple assault. Id. On remand the circuit court sentenced Brown to six (6) months for simple assault, to run consecutively with the sentence to be served on the rape conviction.
¶4. In 1996, Brown filed a motion to vacate the judgment and sentence, which the trial court construed to be a petition for post conviction relief. *fn1 Brown claims that he has been deprived of various liberty interests by the language in the sentencing order. The language of which Brown complains states, "that said six (6) months sentence shall run consecutive to and begin after he has completely served his sentence on the Rape charge in this same case." Brown argues that the trial court revoked his parole eligibility by requiring him to "completely serve" the twenty year sentence on the rape conviction before he can start to serve the six months on the simple assault conviction. Brown also claims that because the sentences are to run consecutively, he has been subjected to multiple punishments for the same crime in violation of the double jeopardy clause of the Fifth Amendment.
¶5. The circuit court denied the petition for post conviction relief holding that the power to grant or deny parole is vested in the parole board and that the language in the sentencing order had no bearing on the parole board's consideration. Aggrieved, Brown filed this appeal.
¶6. When reviewing a lower court's decision to deny a petition for post conviction relief this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous. Bank of Mississippi v. Southern Mem'l Park, Inc., 677 So. 2d 186, 191 (Miss. 1996). However, where questions of law are raised the applicable standard of review is de novo. Id. The issues of whether the language of the sentencing order operated as a revocation of Brown's parole eligibility or whether ...