Demario Walker v. State of Mississippi
230 So. 3d 709
| Miss. Ct. App. | 2016Background
- On July 23, 2013, DeMario Walker pleaded guilty to false pretense and received a five-year sentence, suspended in favor of five years’ probation and court-ordered restitution/fees.
- Walker was discharged from an unrelated MDOC term and placed on probation effective July 13, 2014.
- Probation officer Richard Johnson filed an affidavit alleging Walker failed to report from July–October 2014, failed to pay fees and restitution, and his whereabouts were unknown; a warrant issued October 16, 2014.
- Walker was arrested, signed waivers of various pre-revocation hearing rights in March 2015, and proceeded to a revocation hearing on March 27, 2015.
- The circuit court revoked Walker’s probation and ordered him to serve the full five-year suspended sentence; Walker filed a post-conviction relief (PCR) motion which the circuit court dismissed.
- On appeal the Court of Appeals affirmed revocation but held that sentencing to the full five years for a first technical violation violated Miss. Code Ann. § 47-7-37 and remanded for resentencing (first violation limited to up to 90 days in a technical-violation or restitution center).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to revoke probation | Walker: court lacked jurisdiction because probation hadn’t begun and he was still serving other sentences | State: Jefferson Davis County Court sentenced him and retained jurisdiction; Walker admitted probation began July 2014 | Court: Walker’s argument procedurally barred and meritless; court had jurisdiction |
| Due process at revocation hearing | Walker: denied Gagnon protections (notice, evidence disclosure, confrontation, neutral decisionmaker, written reasons) | State: waivers signed; allegations and evidence presented; Johnson available for cross-exam; judge’s conduct not prosecutorial | Court: Gagnon requirements met; claims without merit; recusal not sought so waived |
| Right to counsel | Walker: mental illness made counsel necessary; he was denied counsel | State: no per se right to counsel in probation revocation; issues were not complex and no competency concerns were raised | Court: No showings of complexity or competency issues; counsel not required |
| Sentence for first technical violation | Walker: five-year custodial sentence was excessive | State: revocation appropriate given violations | Court: Revocation proper, but statute limits first technical violation to ≤90 days in technical/restitution center; reversed and remanded for resentencing |
Key Cases Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (lists minimum due-process protections required at probation/parole revocation hearings)
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (establishes procedural due-process framework for parole revocations referenced in Gagnon)
- Braziel v. State, 186 So. 3d 424 (Miss. Ct. App. 2016) (probation revocation requires proof that violation is "more likely than not")