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Stacks v. State

Court of Appeals of Mississippi

March 20, 2018

GARY WAYNE STACKS A/K/A GARY WAYNE STACKS, JR. A/K/A GARY STACKS A/K/A GARY W. STACKS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/03/2017

         CLAY COUNTY CIRCUIT COURT HON. LEE J. HOWARD JUDGE

          ATTORNEY FOR APPELLANT: GARY WAYNE STACKS (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY GERBER

          BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

          WILSON, J.

         ¶1. Gary Wayne Stacks appeals from the denial of his motion for post-conviction relief (PCR). The circuit court terminated Stacks's term of post-release supervision (PRS) and recommitted Stacks to the custody of the Mississippi Department of Corrections (MDOC) after Stacks violated multiple conditions of his PRS. In his PCR motion, Stacks argued that the circuit court lacked authority to recommit him to MDOC custody because his original sentencing order did not expressly impose a suspended sentence to correspond with his term of PRS. This Court rejected the same argument in Anderson v. State, 89 So.3d 645, 649-51 (¶¶7-12) (Miss. Ct. App. 2011). Therefore, we affirm the circuit court's order denying Stacks's PCR motion.

         ¶2. In 2007, Stacks pled guilty to manufacturing methamphetamine. Pursuant to a plea agreement, the State recommended a sentence of ten years in MDOC custody followed by five years of PRS and a fine.[1] The State also agreed to retire a second charge to the files.[2] The circuit court accepted Stacks's plea, followed the State's recommendation, and sentenced Stacks to ten years in MDOC custody to be followed by five years of PRS, a $5, 000 fine, and court costs. At his plea/sentencing hearing, the court specifically warned Stacks of the consequences of a violation of the conditions of his PRS:

The Court: [Y]ou [are] sentenced to 10 years in the Department of Corrections . . . to be followed by 5-years post-release supervision. Pay the minimum fine of $5, 000 and all cost of court. The fine and the court cost will be paid as a condition of the 5-years post-release; which means if you do not pay it, you'll have to pick up and serve the other five. Do you understand that?

Stacks: Yes, sir.

. . . .

The Court: Now, there are some other conditions to a post-release sentence. The other conditions are these: You must be a honest law-abiding citizen.

Stacks: Yes, sir.

The Court: You must report to the Department of Corrections as they direct, usually once a month.

Stacks: Yes, sir.

The Court: Each time you report, you're required to pay the State of Mississippi $45 as a supervision fee. But if you don't have the money you still report. You can use no illegal drugs: cocaine, LSD, heroin, marijuana, speed.

Stacks: Yes, sir.

The Court: No alcohol: beer, wine, or whiskey. And they're going to be testing you.

Stacks: Yes, sir.

The Court: Again, if you violate any of these conditions, Mr. Stacks, you have to pick up and serve the other five years.

Stacks: Yes, sir.

The Court: Do you have any questions about the sentence?

Stacks: No.

(Emphasis added).

         ¶3. Stacks completed his ten-year term in MDOC custody in 2016[3] and was discharged to begin PRS. About six months later, a warrant was issued for his arrest for multiple violations of the conditions of his PRS: he failed to report in July and August 2016, failed to pay his supervision fees, failed to pay his fine and court costs, twice tested positive for amphetamine and methamphetamine, and failed to attend required drug and alcohol treatment. The circuit court held a revocation hearing, found that Stacks had violated the conditions of his PRS, and sentenced him to serve his term of PRS (5 years) in MDOC custody. Stacks subsequently filed a PCR motion challenging his revocation, which the circuit court denied. He then filed a timely notice of appeal.

         ¶4. Stacks argues that the circuit court lacked authority to sentence him to serve five years in MDOC custody for violating the conditions of his PRS. Stacks argues that his entire sentence had expired before he was placed on PRS because the original sentencing order did not impose a suspended sentence to correspond with his five-year term of PRS.

         ¶5. This Court rejected the same basic argument in Anderson, supra. Anderson originally was sentenced to serve five days in MDOC custody, with no suspended sentence and ten years of PRS. Anderson, 89 So.3d at 649 (¶7). Anderson subsequently violated the terms of his PRS, and the circuit court revoked eight years of his PRS and sentenced him to serve the same amount of time in MDOC custody. Id. at 648 (ΒΆ3). In a PCR motion, Anderson argued that because "no portion of his sentence was suspended originally . . ., the circuit judge could not order him ...


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