OF JUDGMENT: 01/29/2018
MADISON COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN III
ATTORNEY FOR APPELLANT: DONALD WILLIE CAREY (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BARBARA WAKELAND BYRD
WILSON, J., FOR THE COURT:
Donald Willie Carey appeals from the circuit court's
dismissal of his motion for post- conviction relief.
Carey's claims for relief are without merit. Therefore,
In January 2006, Carey was convicted of aggravated assault
and armed robbery in Madison County Circuit Court. The court
sentenced him to concurrent terms of fifteen years in the
custody of the Mississippi Department of Corrections (MDOC).
The court suspended nine years of each sentence conditioned
on Carey's good conduct and satisfactory completion of a
five-year term of post-release supervision (PRS). Following a
term of imprisonment, Carey was released, but he failed to
complete his term of PRS. On March 25, 2013, Carey pled
guilty to the offense of kidnapping, which he committed while
on PRS. The same day, the circuit court also revoked
Carey's concurrent suspended sentences for aggravated
assault and armed robbery and ordered Carey remanded to the
custody of the MDOC until he had served the sentences in
On January 23, 2018, Carey filed a motion for post-conviction
relief alleging that his suspended sentences had been
unlawfully revoked. Carey asserted that there was
insufficient evidence to support his revocation for new
criminal activity. The circuit court dismissed Carey's
motion as time-barred. See Miss. Code Ann. §
99-39-5(2) (Rev. 2015) (providing that, subject to certain
exceptions, a motion for post-conviction relief shall be
filed within three years of the entry of a guilty plea).
Carey filed a timely notice of appeal.
We affirm. The circuit court properly dismissed Carey's
motion because it clearly fails on the merits. See
Miss. Code Ann. § 99-39-11(2) (Rev. 2015) (providing
that a judge may summarily dismiss a motion for
post-conviction relief that "plainly" fails to
state a claim). There was sufficient evidence to revoke
Carey's suspended sentences because he pled guilty to a
new crime, kidnapping, which he committed while on
On appeal, Carey advances a new argument: that he was
entitled to credit against his concurrent nine-year suspended
sentences for the approximately two years and eight months
that he served on PRS. That argument is procedurally barred
because it is raised for the first time on appeal.
Gardner v. State, 531 So.2d 805, 808-09 (Miss.
1988). It is also without merit. As this Court has held,
"probation does not equal time served and cannot be
credited toward a suspended sentence." Simmons v.
State, 913 So.2d 1011, 1012 (¶7) (Miss. Ct. App.
2005). Likewise, no credit is allowed against a suspended
sentence for time spent on PRS. Schwend v. State,
996 So.2d 174, 175-76 (¶7) (Miss. Ct. App. 2008);
Fluker v. State, 2 So.3d 717, 720 (¶12) (Miss.
Ct. App. 2008); Johnson v. State, 802 So.2d 110,
112-13 (¶¶9-10) (Miss. Ct. App. 2001). Therefore,
upon revocation of Carey's PRS, the circuit court had
authority to order Carey to serve his full suspended
sentences for aggravated assault and armed robbery.
Carey's claims for relief are plainly without merit.
Therefore, the circuit court properly dismissed his motion
for post-conviction relief.
GRIFFIS, C.J., BARNES AND CARLTON, P.JJ., GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. McDONALD, LAWRENCE ...