DARRELL W. PHILLIPS A/K/A DARRELL PHILLIPS A/K/A DARRELL WENDELL PHILLIPS APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 12/12/2016
COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM SR.
ATTORNEY FOR APPELLANT: DARRELL W. PHILLIPS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LAURA HOGAN TEDDER
LEE, C.J., FAIR AND GREENLEE, JJ.
J., FOR THE COURT.
Darrell Phillips's suspended sentence was revoked after
he was convicted of a felony in Tennessee. He later filed a
motion for post-conviction relief challenging the timeliness
of his revocation hearing. The circuit court dismissed it
without an evidentiary hearing, finding that although
Phillips's revocation hearing was untimely under the
statute, he was not entitled to have his revocation set
aside. We agree and affirm.
The circuit court may summarily dismiss a PCR motion without
an evidentiary hearing "[i]f it plainly appears from the
face of the motion, any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to
any relief." Miss. Code Ann. § 99-39-11(2) (Rev.
2015). To succeed on appeal, the petitioner must: (1) make a
substantial showing of the denial of a state or federal right
and (2) show that the claim is procedurally alive. Young
v. State, 731 So.2d 1120, 1122 (¶9) (Miss. 1999).
Our review of the summary dismissal of a PCR motion, a
question of law, is de novo. Id.
Statutory Timeliness of Revocation Hearing
In 2008, Phillips pled guilty to felony shoplifting. He was
sentenced to five years' incarceration followed by five
years of post-release supervision. In September 2013,
Phillips was arrested in Tennessee for attempted robbery. A
short time thereafter, the State filed a motion to revoke
Phillips's suspended sentence, and a bench warrant was
issued. Phillips subsequently pled guilty in Tennessee to the
robbery charge. He was transported back to Mississippi on
September 18, 2015, and was served with the revocation
warrant that day. Phillips was appointed counsel for the
revocation proceedings, and he apparently presented no
defense at the revocation hearing in exchange for a reduced
sentence after revocation. The hearing was held October 16,
2015, and the order revoking the suspended sentence was filed
the same day. Phillips was ordered to serve three years of
his suspended sentence.
On September 9, 2016, Phillips filed the instant motion for
post-conviction relief, alleging that his revocation hearing
was untimely pursuant to the 2014 amendments to revocation
procedure enacted by House Bill 585, which became effective
July 1, 2014. The 2014 amendments substantially changed
probation and suspended sentence revocation, prescribing
certain procedures and time limitations, and notably limiting
revocations for "technical violations" to certain
prescribed time periods. See Miss. Code Ann. §
47-7-37 (Rev. 2015). In particular, subsection 47-7-37(3)
requires that, after an offender is arrested on a warrant for
an alleged violation of probation (or suspended sentence),
"the department shall hold an informal preliminary
hearing within seventy-two (72) hours of the arrest to
determine whether there is reasonable cause to believe the
person has violated a condition of probation."
Subsection (5)(a) then provides that the revocation hearing
shall be held within twenty-one days of the arrest if the
offender remains detained on the warrant. If the hearing is
not held within twenty-one days, "the offender shall be
released from detention and shall return to probation status,
" but the court may still "subsequently hold a
hearing" and revoke the suspended sentence. Id.
at (5)(c). Subsection (10) requires that the "revocation
charge shall be dismissed if the revocation hearing is not
held within thirty (30) days of the warrant being issued,