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Carey v. State

Court of Appeals of Mississippi

January 15, 2019

DONALD WILLIE CAREY A/K/A DONALD CAREY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/29/2018

          MADISON COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN III TRIAL JUDGE:

          ATTORNEY FOR APPELLANT: DONALD WILLIE CAREY (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

         EN BANC.

          WILSON, J., FOR THE COURT:

         ¶1. 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, we affirm.

         ¶2. 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 full.[1]

         ¶3. 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.

         ¶4. 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).[2] There was sufficient evidence to revoke Carey's suspended sentences because he pled guilty to a new crime, kidnapping, which he committed while on PRS.[3]

         ¶5. 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.

         ¶6. Carey's claims for relief are plainly without merit. Therefore, the circuit court properly dismissed his motion for post-conviction relief.

         ¶7. AFFIRMED.

          GRIFFIS, C.J., BARNES AND CARLTON, P.JJ., GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. McDONALD, LAWRENCE ...


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