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Robertson v. State

Court of Appeals of Mississippi

February 18, 2014

EDWARD ROBERTSON, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/16/2012. TRIAL JUDGE: HON. DAVID H. STRONG JR. TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DENIED.

FOR APPELLANT: EDWARD ROBERTSON (Pro se).

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.

BEFORE IRVING, P.J., CARLTON AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

Page 911

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

MAXWELL, J.

[¶1] Edward Robertson appeals from the denial of his post-conviction relief (PCR) challenge. While on supervised release for two felony convictions, Robertson was arrested and pled guilty to felony DUI but was not afforded a preliminary revocation hearing before the circuit judge revoked his post-release supervision. We find the failure to hold a preliminary revocation hearing, on these facts, was at most harmless error, which did not entitle Robertson to post-conviction relief. Furthermore, when later given the option of setting aside his revocation, and proceeding with a preliminary revocation hearing, Robertson recognized the futility of doing so and expressly waived his right to the preliminary hearing. We thus affirm the circuit court's denial of Robertson's PCR motion.

Facts and Procedural History

[¶2] On May 9, 2000, Robertson entered guilty pleas to armed robbery and conspiracy to commit armed robbery. Robertson was sentenced to concurrent sentences of forty years and five years for the two crimes. He was ordered to serve the first fifteen years in prison, with the remaining twenty-five years on post-release supervision. Robertson was apparently released on post-release supervision on February 9, 2008.

[¶3] On October 11, 2010, Robertson's Mississippi Department of Corrections (MDOC) field officer filed an affidavit, attesting that Robertson had pled guilty to a

Page 912

new crime [1] while on post-release supervision. The field officer also cited Robertson for failing to report to him from July 2010 to October 2010, and failing to pay court-ordered fines and supervision fees. On October 11, 2010, a warrant issued for Robertson's arrest for these post-release-supervision violations. According to Robertson, he was arrested on May 4, 2011.

[¶4] On November 7, 2011, the circuit judge held a revocation hearing and revoked the first six years of Robertson's previously suspended sentence. The judge ordered that he serve this time consecutively to the sentence for his most recent conviction. The court suspended the remainder of his sentence, other than five years of post-release supervision.

[¶5] On February 17, 2012, Robertson filed a pro se PCR motion. He argued his post-release supervision was wrongfully revoked since he was never notified of his right to a preliminary revocation hearing. The circuit judge set ...


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