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Ross v. State

Court of Appeals of Mississippi

September 24, 2013

Alan ROSS a/k/a Alan Wayne Ross, Appellant
v.
STATE of Mississippi, Appellee.

Christopher Tyler Kent, attorney for appellant.

Office of the Attorney General by Lysa L. Blount, attorney for appellee.

Page 137

Before IRVING, P.J., ISHEE and FAIR, JJ.

FAIR, J.

¶ 1. Alan Ross is before this Court for the third time. This appearance, like his first two, relates to a 1997 conviction and twenty-year sentence for sale of cocaine. For the third time, we affirm the trial court's decision to deny him relief.

FACTS

¶ 2. In December 1998, Ross pled guilty to sale of crack cocaine and received a sentence of twenty years, with twelve to serve and the remaining eight suspended, but with five of the eight under post-release supervision.

¶ 3. He filed for post-conviction relief six months later, asserting ineffectiveness of trial counsel. This Court affirmed the denial of that petition in 2001.[1]

¶ 4. In May 2002, Ross achieved trusty status and began receiving ten days' additional credit for every thirty days he served on his twelve-year incarceration. When the " trusty-time credit" statute was amended to provide for thirty days' credit for thirty days of trusty time, he claimed entitlement to the increase. Ross's increase was denied, and he filed for post-conviction relief, ultimately receiving his second opinion from this Court in 2006. [2] The amended statute, however, excluded those convicted of drug trafficking, and this Court denied Ross the extra twenty days' credit he sought. The Court held, however, that he would continue to earn the ten-day trusty-time credit.

¶ 5. By the spring of 2008, Ross had " flat timed" the twelve-year incarceration provision of his sentence due to credit for time spent in jail prior to his conviction and trusty-time credit he had earned. In accord with the sentence, Ross was released and placed under post-release supervision. He started to work in construction and received, according to his later testimony, a contractor's license.

¶ 6. In early November 2009, he was charged with receiving stolen property, and shortly thereafter, the Mississippi Department of Corrections (MDOC) initiated revocation proceedings. Ross waived his right to notice and/or a waiting period prior to a hearing, along with his right to a preliminary hearing. On June 14, 2010, after a hearing before the Circuit Court of Pontotoc County, his post-release supervision was revoked, and he was returned to the custody of the MDOC to serve the remaining six years and three months of the eight-year suspended portion of his sentence. Ross then filed his third petition, and on October 17, 2011, the trial court denied his petition. [3] Ross has presented the identical issues before this Court, which are set out below. The trial judge affirmed his prior revocation, basing his ruling solely on Ross's failure to pay costs of court, a $750 fine, and twenty months worth of post-release supervision fees at $25 per month.

ISSUES

¶ 7. Ross asserts two grounds for reversal: (1) revocation of his probation was unconstitutional because, even though the primary reason for the revocation was his failure to pay his fine and court costs, the trial court failed to inquire ...


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