Weaver v. StateWeaver v. State
I. Factual and Procedural Background
¶ 2. Weaver pled guilty in December 1997 to one count of burglary of a dwelling. He was sentenced to a term of twenty years with five years to serve and the final fifteen suspended “upon his good behavior and subject to the conditions in Section
¶ 3. In an earlier appeal from that sentence that began as a proceeding under Mississippi‘s post-conviction relief statute, Weaver complained that the banishment provisions of his judgment were prohibited under constitutional considerations and, therefore, unenforceable. Weaver v. State, 764 So.2d 479 (Miss.Ct.App. 2000). Alternatively, he contended that such a banishment was, in effect, a term of probation or post-release supervision, and, as such, could not extend longer than five years following his release. Id. at (¶ 9).
¶ 4. This Court, in its earlier opinion, found that the trial court erred when it failed to make appropriate findings on the record concerning the advisability and reasonableness of the banishment provisions similar to those found in Cobb v. State, 437 So.2d 1218 (Miss. 1983). We remanded for on-the-record findings as to the relevant considerations. Additionally, this Court appeared to agree with Weaver‘s contention that a banishment provision was a condition of probation or supervised release that, under Section
¶ 5. After a hearing on remand, the trial court entered an “Order of the Court Clarifying Sentencing Order” declaring that the original judgment “is hereby amended to remove the provision for banishment and by placing the defendant on supervised probation for a period of five years upon his release from custody.”
¶ 6. Weaver has now appealed from that order, contending that the added requirement of supervised probation is a new and additional element of punishment, more onerous than his original sentence, resulting in his being punished twice for the same crime in violation of the Double Jeopardy provisions of the Constitution of the United States.
II. Discussion
¶ 7. Once the term of court has ended at which a judgment of sentence is handed down, the general rule is that the trial court has lost its authority to alter or amend the term of punishment afforded to the guilty defendant. Mississippi Comm‘n on Judicial Performance v. Russell, 691 So.2d 929, 943 (Miss. 1997). Additionally, there is the well-established proposition that any attempt to alter the terms of punishment in order to increase the severity of the punishment, once the sentence originally announced becomes final, is not permitted under considerations arising under the Double Jeopardy Clause of the Constitution of the United States. Leonard v. State, 271 So.2d 445, 447 (Miss. 1973); Johnson v. State, 753 So.2d 449 (¶ ¶ 13-14) (Miss.Ct.App. 1999).
¶ 8. In this case, the defendant himself raised the question of the enforceability of his original sentence by bringing an action under this state‘s post-conviction relief statute attacking the banishment provision of the sentence. Such an action is authorized under Section
¶ 9. That does not appear to be the limit of the trial court‘s authority. In instances where the Mississippi Supreme Court has found a sentence to be improper on some ground, the remedy imposed has not been to simply vacate the sentence, but to vacate and remand to the trial court for
¶ 10. The only limitation on the court‘s authority to re-sentence would appear to be the overriding Double Jeopardy provisions of the United States Constitution that would prevent the trial court from imposing a harsher punishment in re-sentencing than existed in the original judgment of sentence. Leonard, 271 So.2d at 447.
¶ 11. In addition to the foregoing considerations, the statute relating to the terms and conditions of probation specifically permits the court to “alter or modify, at any time during the period of probation or post-release supervision the conditions [of probation]. . . .”
¶ 12. The issue therefore becomes two-fold: (1) do the provisions permitting post-release modification of the terms of probation run afoul of Double Jeopardy concerns, thereby rendering that part of the statute unconstitutional; and (2) if not, did the particular manner in which Weaver‘s post-release conditions of behavior were modified violate those same constitutional provisions? Did the substitution of supervised probation instead of banishment amount to a constitutionally-impermissible increase in the harshness or onerous nature of Weaver‘s punishment?
¶ 13. As to the first issue, at least two other jurisdictions considering a similar issue did not appear to find an absolute constitutional bar to a modification of the terms of probation. Reyes v. State, 978 P.2d 635, 640 (Alaska Ct. App. 1999); Staley v. State, 505 S.E.2d 491, 493-94 (Ga.Ct.App. 1998). This Court, too, can envision circumstances where it would be entirely appropriate to alter the terms of probation or post-release supervision and we do not conclude that a blanket prohibition against any form of such post-sentence changes is required under the constitutional provisions asserted by Weaver in this appeal. One example might be where the terms of probation are tightened after an apparent probation violation that the trial court is concerned about but seeks to avoid the necessity of revoking the probation.
¶ 14. The second, and more narrow, issue to be answered is whether, on the particular facts of this case, there has been an impermissible increase in the level of punishment being inflicted upon Weaver by virtue of this change in the conditions of his release. Merely deciding that the probation statute permits some changes in probation terms does not necessarily mean that all such changes are permissible since there will always remain questions of enhancement of the punishment that is prohibited by the constitution. Nevertheless, as the Georgia court observed in Staley, “A change in the conditions of probation is not necessarily an increase in sentence.” Id. at 494. By way of illustration of that
¶ 15. In the case before us, the court discussed the fact that the original banishment provision was an attempt to remove Weaver from an environment and potential companions believed by the court to be detrimental to Weaver‘s chances of rehabilitating himself after release from incarceration. On remand, the trial court apparently concluded, for reasons it did not spell out, that the banishment could not be justified within the context of the Cobb decision and removed it as a condition of the suspension of the remaining fifteen years of Weaver‘s sentence. This resulted in the removal of any safeguard against Weaver resuming the associations and lifestyle that the court concluded had contributed to his tendency toward criminal activity. Rather than simply permit Weaver to return to that environment without any oversight or safeguard, the trial court — apparently based purely on considerations of rehabilitation rather than punishment — required Weaver to submit to supervised probation for the first five years after his release.
¶ 16. It is the view of this Court that the requirement of periodically reporting in some appropriate manner to a probation officer who then has the opportunity to monitor Weaver‘s post-release activities and, through appropriate supervisory techniques, assist Weaver in avoiding the pitfalls that led to his previous legal problems is not so punitive or onerous as to amount to an unlawful increase of the terms of his punishment. Such periodic reporting as may reasonably be required does not appear unreasonably harsh or burdensome as a condition of continued release from confinement. Such a requirement appears to our satisfaction to be rehabilitative rather than punitive and thus not subject to the constitutional challenges raised by Weaver in this appeal.
¶ 17. Weaver contends, as a part of his argument, that the imposition of supervised probation in this instance is against the holding in Artis v. State, since the original sentence did not impose any probationary conditions on the suspended portion of his release. Artis v. State, 643 So.2d 533, 537-38 (Miss. 1994). This simply is inaccurate. Banishment is, of itself, a probationary provision. Cobb, 437 So.2d at 1221.
¶ 18. Additionally, the trial court‘s sentencing order specifically conditioned the suspension of fifteen years of Weaver‘s sentence “upon his good behavior and subject to the conditions in Section
¶ 19. In summary, we do not conclude that the substitution of some period of formal probationary supervision in place of
¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF CHICKASAW COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.
KING AND SOUTHWICK, P. JJ., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.