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Phillips v. State

Court of Appeals of Mississippi

January 9, 2018

DARRELL W. PHILLIPS A/K/A DARRELL PHILLIPS A/K/A DARRELL WENDELL PHILLIPS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/12/2016

         DESOTO 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

          BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

          FAIR, J., FOR THE COURT.

         ¶1. Darrell Phillips's suspended sentence was revoked after he was convicted of a felony in Tennessee.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.

         STANDARD OF REVIEW

         ¶2. 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).

         ¶3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

         DISCUSSION

         1. Statutory Timeliness of Revocation Hearing

         ¶4. 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.

         ¶5. 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, " ...


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