Johnson v. StateJohnson v. State
CARLSON, Justice, for the Court.
¶ 1. We granted certiorari in this case because we are again confronted with certain issues which have for some time caused both this Court and the Court of Appeals to devote considerable time and energy in an effort to clarify certain sentencing laws. We attempt through this opinion to once and for all lay to rest the perplexing issues concerning suspended sentences, supervised probation, and post-release supervision. While we find the Court of Appeals correctly found Johnson‘s
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶ 2. We glean from the opinion of the Court of Appeals the facts which are relevant for today‘s discussion:
In 1999, Johnny Johnson was arrested for the sale of 0.1 gram of cocaine. He was indicted in July 2000. Prior to that indictment, Johnson had been convicted in March 2000, for a different sale of controlled substances. He had been sentenced to fifteen years, four to serve and eleven years suspended, with the suspension subject to the rules for post-release supervision.
In February 2003, Johnson was tried for the 1999 drug sale.1 He was convicted and sentenced to fifteen years imprisonment, with eight years suspended and post-release supervision for five years. This sentence was consecutive to the one that Johnson was already serving. Johnson appeals.
Johnson v. State, 924 So.2d 527, 528-29 (Miss.Ct.App.2004). It is thus clear from the record that after his arrest for the drug sale which is the subject of today‘s appeal, but prior to his indictment on this charge, Johnson was convicted in March, 2000, on an unrelated drug sale. Therefore, by the time he stood before the sentencing judge on February 21, 2003, Johnson was indeed a prior convicted felon based on his March, 2000 conviction.
¶ 3. We set out verbatim portions of Johnson‘s sentence as imposed by Circuit Judge R.I. Prichard, III:
[T]hereupon entering a plea of guilty... [Johnson] be and he is hereby sentenced to serve a term of fifteen (15) years in the custody of the Mississippi State Department of Corrections, with said sentence to run consecutive to the sentence [he] is now serving.
* * *
[U]pon successful completion of the service of said seven (7) years, the remaining
eight (8) years of the fifteen (15) year sentence be and the same are hereby suspended pursuant and in conformity with the Post-Release Supervision set out and authorized in Section 47-7-34 of the Mississippi Code of 1972, Amended and Annotated. * * *
If [Johnson] meets all of the above conditions, then the remaining eight (8) years of the fifteen (15) year sentence be and the same are hereby suspended and [Johnson] shall be placed on Post-Release Supervision upon the following terms and conditions for a period of five (5) years.
* * *
The violation of any one of the above enumerated conditions shall violate the terms and conditions of [Johnson‘s] Post-Release Supervision and the Court shall have the authority to revoke the defendant from Post-Release Supervision and remand him back into the custody of the [MDOC] to serve all of the remaining years left on his fifteen (15) year sentence.
The practical effect of the sentence which Judge Prichard imposed upon Johnson was that (1) upon completion of the sentence Johnson was serving at the time of the imposition of the sentence under review, Johnson would serve seven years of incarceration; (2) upon release from MDOC custody, Johnson would serve the remaining eight years of his fifteen-year sentence on post-release supervision pursuant to the provisions of
PROCEEDINGS IN THE COURT OF APPEALS
¶ 4. Before the Court of Appeals, Johnson attacked only his sentence, arguing that (1) the sentence was vindictive and harsh;2 (2) the imposition of a sentence which ran consecutive to his previously imposed sentence was a denial of due process; and, (3) the sentence was disproportionate and thus in violation of the Eighth Amendment to the United States Constitution, and the sentence was also illegal since, as a prior convicted felon, Johnson could not receive a suspended sentence. The Court of Appeals found Johnson‘s assignments
¶ 5. In relying on two of its prior cases, Hunt v. State, 874 So.2d 448 (Miss.Ct.App. 2004) and Gaston v. State, 817 So.2d 613 (Miss.Ct.App.2002), the Court of Appeals stated:
A section 47-7-34 sentence requires a “specific term of incarceration, no suspended sentence or ‘probation,’ and a specific term of post-release supervision of up to five years after incarceration, provided that the total of the two terms does not exceed the maximum sentence for the crime.” [Hunt, 874 So.2d] at 456. Post-release supervision might be seen as a merger of the purposes of suspension and probation, since the term of supervision must come out of the unserved portion of the maximum prison term for the offense.
Johnson, 924 So.2d at 530. The Court of Appeals, after analyzing the provisions of
Johnson had eight years of a fifteen year sentence suspended. As noted above, since the statute that permits post-release supervision does not contain language authorizing suspending sentences, and another statute bars suspension of sentences to prior felons, no suspension should be given. However, there is no practical difference between what the trial judge did and what he should have done, which would have been to sentence Johnson to a seven year term of incarceration and a five year term of post-release supervision. We modify the sentence only to the extent that we remove as surplusage the giving of a fifteen year sentence with eight years suspended. In all other respects the sentence is affirmed, such that Johnson is to serve a term of incarceration of seven years in the custody of the Mississippi Department of Corrections, and then has a five year term of post-release supervision under the provisions of section 47-7-34.
The Supreme Court has recently even suggested that there may be two different modes in which post-release supervision can be served. One is under the supervision of the Mississippi Department of Corrections, limited to five years. The statute may also permit unsupervised post-release supervision for additional periods so long as the total of the term to serve, the term of supervised supervision, and the term of unsupervised supervision does not exceed the maximum sentence for the offense. Miller v. State, 875 So.2d 194, 199 (Miss. 2004), interpreting
Miss.Code Ann. § 47-7-34(3) (Supp.2003). In Miller that conclusion was dicta. Later decisions are needed to make the interpretation of post-release supervision more certain.
¶ 6. In the end, the Court of Appeals modified the circuit court sentence to remove the eight-year suspended sentence, replacing that portion of the sentence with five years of post-release supervision.3 Thus, while the net result of the Court of
DISCUSSION
¶ 7. In considering the State‘s cert petition, we deem it necessary to address today only one issue.
WHETHER THE CIRCUIT COURT IMPOSED AN ILLEGAL SENTENCE, OR A SENTENCE WHICH REQUIRED APPELLATE COURT MODIFICATION.
¶ 8. As already aptly noted, we are again confronted with the ever-present sentencing problem that occurs when a prior convicted felon is given a split sentence of incarceration followed by MDOC supervision, whether it be classified as post-release supervision, or supervised probation. Likewise, problems seem to arise when the term “suspended” or “suspended sentence” appears anywhere in the sentencing order. The difficulty that has arisen from this otherwise typical exercise of judicial discretion stems from long-standing confusion as to how a “suspended sentence” works in concert with a statutory period of “supervised probation,” as codified under
A. Miss.Code Ann. § 47-7-33:
¶ 9. We begin our analysis by outlining the confusion that has arisen in our jurisprudence regarding a judge‘s authority to suspend a sentence, or to suspend a sentence and place a defendant on supervised probation. While our statute intimates that “suspending the imposition or execution of a sentence” and “placing a defendant on probation” are bred from the same legislative grace, it is clear that these sentencing mechanisms are distinguishable and serve discrete functions carried out by different branches of our state government. Importantly, these two sentencing tools can be used by a trial judge either separately or together.
¶ 11. Quite differently, probation restricts the prisoner‘s rights rather than those of the State. Goss, 721 So.2d at 146. If a prisoner is under court imposed probation, that prisoner may be incarcerated if the conditions of probation are not followed.4 Id. Probation is a matter of grace and a conditional liberty that is a favor, not a right or entitlement. 21A Am.Jur.2d, Criminal Law § 904 p. 169. Moreover, probation is a sentence and not part of a quasi-contract wherein the court offers something which the defendant is free to accept or reject. Id. Probation is to be considered at the time of sentencing, and it starts with the process of probation or conditional discharge, moving toward imprisonment only if certain justifications exist to deny probation or conditional discharge. Id. at 168.
¶ 12. Generally, the law distinguishes the suspension of a sentence from probation. Moreover, while both probation and the suspension of sentence involve the trial court‘s discretionary and conditional release of a convict from the service of a sentence within the penal system, a probationary sentence is served under the supervision of probation officers, whereas a suspended sentence is served without such supervision, but on such legal terms and conditions as are required by the sentencing judge.5 Id. at 169. Moreover, a straight suspended sentence is not subject to the conglomeration of rules that can be
Under probation the court releases the defendant into the community under the supervision of a probation officer. The defendant‘s freedom after conviction is subject to the condition that for a stipulated period of time he shall conduct himself in a manner approved by a special officer to whom he must make periodic reports. Black‘s Law Dictionary, 1082 (5th ed.1979). A suspended sentence is one that is given formally but not actually served. The defendant is not required, at the time the sentence is imposed, to actually serve the sentence. This suspension is contingent upon the good behavior of the defendant. Id. at 1223, 1297. Under a suspended sentence the defendant is not required to report to an officer as he is while on probation. However, the trial court does possess the power to revoke the suspended sentence.
Clearly, the obligations, duties and expectations of the defendant on probation are distinct from a defendant‘s responsibilities while “serving” a suspended sentence. Furthermore, a trial court may impose a suspended sentence for a term up to the maximum sentence allowed by law. Under Mississippi law, a trial court may only impose probation for a maximum of five (5) years.
Miss.Code Ann. § 47-7-37 (Supp.1999).... A suspension of a sentence does not automatically mean that the defendant will be on probation and under a duty to report to a probation officer. It simply means that part of his entire sentence has been postponed pending the defendant‘s good behavior or such other conditions as the court may see fit to establish.
Carter, 754 So.2d at 1210-11 (Mills, J., dissenting).
¶ 13. One need go no further than the Mississippi Code to clearly see the distinct nature of probation versus that of a suspended sentence. For example,
Whenever any court granting a suspended sentence, or the governor granting a pardon, based on conditions which the offender has violated or failed to observe, shall be convinced by proper showing, of such violation of sentence or pardon, then the governor or the judge of the court granting such suspension of sentence shall be authorized to annul and vacate such suspended sentence or conditional pardon in vacation or court time. The convicted offender shall thereafter be subject to arrest and court sentence service, as if no suspended sentence or conditional pardon had been granted, and shall be required to serve the full term of the original sentence that has not been served. The offender shall be subject, after such action by the court or the governor, to arrest and return to proper authorities as in the case with ordinary escaped prisoner.
¶ 14. Additionally,
When a person is sentenced to imprisonment for a felony committed while the person was on parole, probation, earned-release supervision, post-release supervision or suspended sentence, the imprisonment shall commence at the termination of the imprisonment for the preceding conviction. The term of imprisonment for a felony committed during parole, probation, earned-release supervision, post-release supervision or suspended sentence shall not run concurrently with any preceding term of imprisonment. If the person is not imprisoned in a penitentiary for the preceding conviction, he shall be placed immediately in the custody of the Department of Corrections to serve the term of imprisonment for the felony committed while on parole, probation, earned-release supervision, post-release supervision or suspended sentence.
¶ 15. While the two sentencing tools must indeed be considered distinct, if a judge chooses to employ
[S]uch court, in termtime or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence. In placing any defendant on probation, the court, or judge, shall direct that such defendant be under the supervision of the Department of Corrections.
¶ 16. Although somewhat disjointed, our precedent evidences recognition of each of these sentencing practices. Moreover, our prior decisions on today‘s issue, which were notably sparse before 1991, bear out our sentencing tradition. In Jackson v. Waller, 248 Miss. 166, 160 So.2d 184 (1964), this Court‘s opinion provides the background to
The 1956 Probation Act created a system of adult probation for first offenders only. The circuit and county courts were granted the power to suspend the imposition or execution of sentences, and place a defendant on probation. In doing so the court is required to direct that he be under the supervision of the Probation and Parole Board. § 4004-23. The court determines the terms and conditions for probation, some of the permissible ones being itemized. § 4004-24. Its period may be extended or terminated by the court, but under section 4004-25 it ‘shall not exceed five years.’ This was the limitation in the Probation Act which our original opinion applied to summary suspensions of misdemeanor sentences under Code section 2541. After careful consideration, we conclude it was error to hold that the provisions of the Probation Act are in pari materia with section 2541, section 4004-25 limits the period of probation under section 2541, and convicts under suspension of sentence for misdemeanors (§ 2541) come under the supervision of the Probation and Parole Board.
The Probation and Parole Act of 1956 does not evidence any intention, we think, to extend the supervisory powers of the board to misdemeanants. §§ 4004-23 to 4004-27. It did not repeal or refer in any way to the summary suspension act, section 2541. There appears no intent to repeal by implication the old summary suspension procedure. The 1950 Parole Act applied only to felonies, and the probation sections were added in 1956 as amendments to the 1950 act. Nowhere in the 1956 statute is any reference made to misdemeanors. The only descriptive statements are to those serving sentences in the state penitentiary, which necessarily pertain to felonies. The total number of employees of the Probation and Parole Board is fixed at fifteen. If the legislature had any intention to provide supervision by probation officers of all misdemeanants whose sentences have been suspended under section 2541, it certainly would not have limited the total number of board employees to fifteen. Code § 4004-05.
¶ 17. The Probation Act and the code sections included therein are exclusively about probation. Moreover, it specifically tasks the Probation and Parole Board with the administration of the Probation Act. Importantly, our decision in Jackson spares the Probation and Parole Board from responsibility for both probation and summary suspension, and ultimately recognizes a trial judge‘s discretion in regards to the latter. “Power to suspend sentences under section 2541 [
¶ 18. A coordinate result of the Probation Act was to expand a criminal court‘s ability to suspend sentences (then codified section § 2541, now
[T]he only statutory authority for suspension of sentences was
section 99-19-25 Mississippi Code Annotated (1972) (then Section 1298 Mississippi Code of 1930) which authorized the circuit and county courts to suspend sentences in misdemeanor cases only. The “probation and Parole Law” was amended by Chapter 262 Mississippi General Laws 1956, and in sections 10 and 11 the statutory authority of circuit and county courts to suspend sentences was extended to include felonies. Before 1956 the circuit and county courts had no statutory authority to suspend sentences in felony cases.
McDaniel, 356 So.2d at 1159 (Sugg, J., Special Concurrence). Thus, the language that has become the subject of today‘s appeal, “to suspend the imposition or execution of sentence,” which was distinguished as language belonging to the Probation Act and as not being “in pari materia” with the summary suspension act, nonetheless became inextricably bound to the judicial concept of suspending a sentence.
¶ 19. Two years prior to McDaniel, this Court handed down Hamlin v. Barrett, 335 So.2d 898 (Miss.1976), and reiterated the Court‘s reading of the Probation Act as stated in Jackson. In Hamlin, this Court was introduced for the first time to the counterintuitive (and now ever-present) argument in which a convicted felon asserts that his probation was illegally granted due to his prior convicted felon status at the time of sentencing. Hamlin was ordered to serve three years in the penitentiary for forgery. Id. at 899. The sentence was then suspended, and the court granted probation; however, later the suspension and probation were revoked, and thus Hamlin presented the aforementioned argument. Id. In upholding the original sentence of the trial court, this Court specifically held that the circuit court had jurisdiction even though the grant of probation was on the other hand “technically inappropriate.” Id. Referencing the circuit court judge‘s decision, this Court reasoned that in effect the circuit court judge found that the prosecutor was not aware of Hamlin‘s prior conviction until after the plea of guilty was made and the probationary sentence meted out. Id. In sum, we ultimately stated that “[t]his case makes it clear and we stress that before granting probation to defendants convicted of crimes trial judges, prosecutors, and defense counsel must exercise care to see that probation is proper under § 47-7-33, supra.” Id. at 900.
¶ 20. Fifteen years later this Court considered a case similar to Hamlin. In Robinson v. State, 585 So.2d 757 (Miss.1991), a prior convicted felon was sentenced to a suspended sentence and supervised probation, and this Court attributed new meaning to
Clearly, § 47-7-33 does not permit suspension of sentence and probation to a defendant with a prior felony conviction. Robinson‘s suspended sentence and probation was without authority and, therefore, invalid. Because Robinson plead guilty on the improper inducement that he was eligible for a suspended sentence or probation, he is therefore permitted to withdraw his guilty plea and he must be allowed to enter a new plea and offered the opportunity of a new trial. Vittitoe v. State, 556 So.2d 1062, 1065 (Miss.1990). Accordingly, we reverse the judgment below and restore Robinson‘s plea of not guilty to the indictment for possession of more than one ounce and less than one kilogram of marijuana and remand for such further appropriate proceedings.
Robinson, 585 So.2d at 759 (emphasis added). While the end result reached by this Court in Robinson was correct, the road we traveled to get to our final destination was more than a little bumpy. Some of the language we used in Robinson in our interpretation of
¶ 21. Our holding in Robinson was galvanized by this Court seven years later with our decision in Goss v. State, 721 So.2d 144 (Miss.1998), a case responsible for perpetuating the interpretation accorded to
Although the total number of years to which Goss was sentenced does not technically exceed the statutory maximum of ten years, and the suspension period does not exceed the statutory maximum of five years, we nevertheless find that the trial court erred in fashioning a sentence which could result in a fifteen year time span during which Goss is under the direct supervision of the State. Therefore, the sentence in its totality violates the limits imposed by the statutes and offends the intent of the legislature in restricting the duration of punishment imposed by the courts.
¶ 22. Further, in review of Goss‘s sentence, this Court turned to precedent and sought once again to decipher the meaning of
In RobinsonRobinson, the trial court suspended the defendant‘s sentence in violation of § 47-7-33 due to the defendant‘s prior felony conviction. Robinson, 585 So.2d at 759. The uncertainty in the instant case stems from the distinguishable fact that only part of Goss‘s sentence was suspended by the lower court rather than the entire sentence as in Robinson. We find that the wording of the statute not only restricts the courts’ ability to place defendants with prior felony convictions on probation, but it also restricts their ability to wholly or partially suspend the sentence of a previously convicted felon. Therefore, the lower court erred in sentencing Goss, a convicted felon, to serve seven
years in the state penitentiary followed by a conditional three year suspended sentence. Goss is simply not entitled to a suspended sentence in light of his prior conviction.
Id. at 146 (emphasis added).
¶ 23. The unquestionable flaw in Goss is that it expanded the limiting language of
¶ 24. We again state for the sake of emphasis that suspending a sentence and imposing probation are distinct events; however, since the advent of Goss, appellate review under
B. Miss.Code Ann. § 47-7-34:
¶ 25. With the passage of the legislation that created the Post-Release Supervision Program, the legislature expressly restored the trial court‘s sentencing authority. Moreover, the sentencing mechanism set forth in
(1) When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court.
(2) The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.
(3) Post-release supervision programs shall be operated through the probation and parole unit of the Division of Community Corrections of the department. The maximum amount of time that the Mississippi Department of Corrections may supervise an offender on the post-release supervision program is five (5) years.
¶ 26. In Miller v. State, 875 So.2d 194 (Miss.2004), this Court assessed the legislature‘s actions and noted the differences between the post-release supervision program codified under
Thus it is clear that the trial judge was placing Miller on probation, but only five (5) years of which would be served under the supervision of the MDOC with the remaining five years being in essence “unsupervised probation.” There is no doubt that Miller could not be required to serve more than five years by way of reporting to a MDOC probation officer (supervised probation), but upon release from the reporting requirements by the MDOC officer and/or the trial court, Miller no doubt could serve the remainder of his sentence by way of unsupervised probation. The sentence was not violative of
Sections 47-7-33 ,47-7-34 or47-7-37 .
¶ 27. Therefore, in reviewing the trial judge‘s sentence, we simply recognized the limitations of
Supervised probation and post-release supervision are totally different statutory creatures.
Miss.Code Ann. § 47-7-33 provides for supervised probation, whileMiss.Code Ann. § 47-7-34 provides for post-release supervision. At least two major differences in these two statutes are (1) supervised probation may not be imposed on a convicted felon while post-release supervision may be imposed on a convicted felon; and, (2) supervised probation is limited to five years while post-release supervision is not. Section 47-7-34 states inter alia that “the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed.” While the statute unquestionably limits to five years the period of time that the MDOC may supervise an offender who is on post-release supervision, the clear language of the statute does not limit the total number of years of post-release supervision to five years.
Id. at 199 (emphasis added).
¶ 28. In 2005, we applied Miller‘s pronouncement to a case dealing with facts similar to today‘s case. In Sweat v. State, 912 So.2d 458 (Miss.2005), the defendant, a prior convicted felon, pled guilty to conspiracy to manufacture methamphetamine and was sentenced to twenty years in the custody of the MDOC, with twelve years suspended and five years of post-release supervision. Sweat, 912 So.2d at 459. On appeal, the Court of Appeals found the circuit court had committed error when it imposed a partially suspended sentence on Sweat. Id. Like Miller, we granted certiorari and took the opportunity to expound on a trial judge‘s sentencing discretion under
We have held that, while § 47-7-34 limits the term of post-release supervision to five years, convicted defendants may be sentenced to a longer term. However, they may only be required to report to MDOC officials for the statutory maximum period. Miller, 875 So.2d at 199-200 (trial judge may sentence a prior convicted felon to more than five years provided that the period of incarceration and post-release supervision do not exceed the maximum period of time allowed for the offense). The time period that extends beyond the five-year statutory maximum for post-release supervision becomes “unsupervised” post-release supervision. Boddie v. State, 875 So.2d 180, 182 n. 1 (Miss.2004).
¶ 29. As with Miller, in Sweat we deciphered the trial judge‘s sentencing intent
Here, it is clear that the trial court sentenced Sweat under § 47-7-34. Therefore, we modify the trial court‘s sentence so that following his eight years of incarceration, Sweat will be released to twelve years of post-release supervision but that he is required to report to MDOC officials for only five years and the remaining seven years will be “unsupervised” post-release supervision.
¶ 30. Essential to our modification of the trial court‘s sentence, we determined that while
¶ 31. Through the legislature‘s enactment of
¶ 32. For purposes of clarity, consistency and cohesion, we hold today that the circuit and county courts of this state have the power to suspend, in whole or in part, a convicted felon‘s sentence under Miss. Code Ann. Sentence 47-7-33 inasmuch as this Court and the legislature have empowered them to do so under Miss.Code Ann. Sentence 47-7-34, and to the extent that the practice has been historically ingrained in our criminal courts’ sentencing practice. In this way, the appellate courts of this state should liberally read the Probation Act, as codified in 1956, along with the Post-Release Supervision Program, as codified in 1995, with an eye on the intentions of the trial courts, recognizing the trial courts’ ability to monitor or supervise prior convicted felons beyond the five-year maximum period statutorily assigned to the MDOC.
C. Judge Prichard‘s Sentencing Order:
¶ 33. With all of this having been said, we now turn to the specific facts of today‘s case. The relevant portion of Judge Prichard‘s sentencing order in Johnson‘s case states:
[I]t is by the Court ORDERED AND ADJUDGED that the said JOHNNY JOHNSON be and he is hereby sentenced to serve a term of fifteen (15) years in the custody of the Mississippi State Department of Corrections, with said sentence to run consecutive to the sentence defendant is now serving, and pay all costs of Court in this case and in Case Nos.K2000-68P and K2000-69P, said payments to be made while on post-release supervision.
IT IS FURTHER ORDERED AND ADJUDGED that the defendant, Johnny Johnson, is to serve seven (7) years of said sentence in the custody of the Mississippi Department of Corrections under the provisions of Mississippi Code Section 47-5-138, as amended, and upon successful completion of the service of said seven (7) years, the remaining eight (8) years of the fifteen (15) year sentence be and the same are hereby suspended pursuant and in conformity with the Post-Release Supervision set out and authorized in Section 47-7-34 of the Mississippi Code of 1972, Amended and Annotated.
¶ 34. The Court of Appeals found error in the trial judge‘s sentencing order and, as it had done in Sweat, specifically focused on the trial court‘s eight year suspension of Johnson‘s fifteen year sentence. However, we note with deference that the Court of Appeals should have focused on the trial judge‘s invocation of
Johnson had eight years of a fifteen year sentence suspended. As noted above, since the statute [47-7-34] that permits post-release supervision does not contain language authorizing suspending sentences, and another statute bars suspension of sentences to prior felons, no suspension should be given. However, there is no practical difference between what the trial judge did and what he should have done, which would have been to sentence Johnson to a seven year term of incarceration and a five year term of post-release supervision. We modify the sentence only to the extent that we remove as surplusage the giving of a fifteen year sentence with eight years suspended. In all other respects the sentence is affirmed, such that Johnson is to serve a term of incarceration of seven years in the custody of the Mississippi Department of Corrections, and then has a five year term of post-release supervision under the provisions of section 47-7-34.
Johnson v. State, 924 So.2d at 530 (Miss. Ct.App.2004).
¶ 35. In modifying the trial court‘s original sentence, the Court of Appeals erroneously changed what in essence was a fifteen year sentence, with seven years to serve, followed by eight years of post-release supervision, to a sentence of seven years to serve, followed by five years of post-release supervision. The Court of Appeals thus ignored the clear intention of the trial judge to order a fifteen-year sentence, which included a term of incarceration, a maximum term of post-release supervision and a straight suspended term (“unsupervised” or “non-reporting” post-release supervision), and modified Johnson‘s fifteen year sentence by simply removing three years of the total sentence, calling it “surplusage.”
¶ 36. This modification of the trial court sentence was error and in derogation of the clear intentions of the trial judge as delineated by
The violation of any one of the above enumerated conditions shall violate the terms and conditions of the defendant‘s Post-Release Supervision and the Court shall have the authority to revoke the defendant from Post-Release Supervision and remand him back into the custody of the Mississippi Department of Corrections to serve all of the remaining years left on his fifteen (15) year sentence.
(emphasis added). Moreover, clearly this intention is appropriately accomplished under
¶ 37. Today, we have accepted the Court of Appeals’ invitation to further explain our decision in Miller (and Sweat) as applied to
¶ 38. For these reasons, we find the circuit court did not impose an illegal sentence, or one which required appellate court modification; therefore, we are constrained to find that while the Court of Appeals correctly found that Johnson‘s sentence (1) was not vindictive or harsh, (2) was not a denial of due process, and (3) was not disproportionate, the Court of Appeals, on the other hand, erred in finding the circuit court had improperly imposed a suspended sentence, thus requiring modification.
CONCLUSION
¶ 39. Today, we return the legislatively intended sentencing discretion to our trial courts by clarifying that (1)
¶ 40. The practical effect of today‘s decision on Johnny Lee Johnson is that Circuit Judge R.I. Prichard, III imposed a valid and non-modifiable sentence upon Johnson when Judge Prichard sentenced Johnson, a prior convicted felon, to serve fifteen years in the custody of the Mississippi Department of Corrections, with seven years to be served by actual incarceration, and the remaining eight years to be suspended and served by way of post-release supervision pursuant to the provisions of
¶ 41. For these reasons, the judgment of the Court of Appeals is affirmed, in part, and reversed, in part, and the final judgment of the Circuit Court of Jefferson Davis County is reinstated and affirmed.
¶ 42. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, AND THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY IS REINSTATED AND AFFIRMED. CONVICTION OF SALE OF A SCHEDULE II CONTROLLED SUBSTANCE (COCAINE-.1 GRAMS) AND SENTENCE OF FIFTEEN (15) YEARS, WITH SEVEN (7) YEARS TO SERVE AND EIGHT (8) YEARS SUSPENDED, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO THE SENTENCE APPELLANT IS NOW SERVING, AND PAY ALL COSTS OF COURT IN THIS CASE AND CASE NOS. K2000-68P AND K2000-69P, WITH PAYMENTS TO BE MADE WHILE ON POST-RELEASE SUPERVISION.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
Notes
In Georgia, ... suspension and probation are twin animals, similar but distinct. Both are mechanisms by which a sentencing court may excuse a defendant from prison time. See
See also State of Washington v. Davis, 56 Wash.2d 729, 355 P.2d 344 (1960), a case with a parallel question to the one presented by Jackson. As stated by the Washington Supreme Court:
This appeal highlights the distinction between a suspended sentence under RCW 9.92.060, which we will refer to as the Suspended Sentence Act, and under the provisions made in the Prison Terms, Paroles and Probation Act, which we will refer to herein as the Probation Act (RCW 9.95.200 through 9.95.250).
Generally speaking, our superior courts use the former when they desire to suspend the execution of a sentence during the good behavior of a convicted person, and the latter when they desire to defer the imposition of a sentence, with a view to an ultimate dismissal of the charges if the behavior of the convicted person warrants such action. However, the latter is available and is used in many instances for the suspension of the execution of a sentence.
Although the end result was the same, the circuit judge in Robinson did not “revoke” the suspended sentence, but instead properly “set aside” the first judgment which provided for a suspended sentence, and entered a second judgment directing that Robinson serve the three-year sentence, not under suspension, but by way of incarceration. As this Court noted in Robinson:
[T]he second sentence was imposed during the same court term as the first sentence. Jones v. Index Drilling Co., 251 Miss. 578, 170 So.2d 564, 571 (1965). This Court, citing Bronson v. Schulten, 104 U.S. (14 Otto) 410, 26 L.Ed. 797 (1882), stated the general rule:
... all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may be set aside, vacated, modified or annulled by that court. (emphasis supplied).