Wilson v. StateWilson v. State
I. WHETHER THE TRIAL COURT ERRED BY REIMPOSING THE EIGHT YEARS SUSPENDED SENTENCE.
II. WHETHER THE TRIAL COURT ERRED IN DENYING HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
STATEMENT OF THE FACTS
¶ 2. On April 3, 1991, Earl Wilson, Jr. pled guilty to grand larceny and armed robbery in the Panola County Circuit Court. For the armed robbery chargе, Cause No. CR-90-74-C(P2), he was ordered to serve “ten years in the Mississippi Department of Corrections with the last eight years suspended, pending your future good behavior....“. On the chargе of grand larceny, Cause No CR-89-133-C(P2), Wilson was sentenced to “a term of five years in the Department of Corrections with the last three years suspended, pending your future good bеhavior....“.
¶ 3. Wilson was released from Parchman on March 19, 1993, after serving two concurrent years. On March 26, 1996, the State of Mississippi petitioned the Circuit Court of Panola County to revoke Wilson‘s armed robbery suspended sentence after he was charged with grand larceny and possession of a firearm by a convicted felon. The Court revoked Wilson‘s suspended sentence following a hearing on August 9, 1996, and reinstated Wilson‘s eight-year armed robbery sentence.
I. WHETHER THE TRIAL COURT ERRED BY REIMPOSING THE EIGHT YEARS SUSPENDED SENTENCE.
¶ 4. The lower court labeled the eight years suspended sentenсe Wilson was given for the armed robbery conviction “unsupervised probation.” Wilson disagrees with this label, but argues that if his sentence is deemed “unsupervised probation“, the sentence violates
The period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation. Such period with аny extension thereof shall not exceed five (5) years....
¶ 5. Wilson argues there was de facto “unsupervised probation“. The difference between probation and suspension of sentence has recently been clearly outlined by this Court. We have stated:
Suspension is a term which generally applies to the actions of the State in relation to a prisonеr under its supervision and control. If a court suspends a sentence imposed upon an accused, the State cannot enforce such sentence during the suspension period, absent violation by the defendant of the suspension terms. Simply stated, “suspension” is the restriction placed upon the power of the State to act during that period.
However, in its order allowing suspension of a sentence, the court will generally prescribe terms and conditions which the prisoner must follow in order for the suspension period to continue. These conditions serve as the terms of “probation.” Probation restricts the prisoner‘s rights rather than those of the State. If a prisoner is under cоurt imposed probation, he or she may be placed in prison if the conditions of probation are not followed.
Goss v. State, 721 So.2d 144, 145-46 (Miss. 1998). In Goss, we found the total sentence imposed exсeeded the maximum proscribed by statute. Goss must be limited to
¶ 6. Wilson‘s sentence falls far below the statutory maximum of life. We must only decide whether a probationary period was established and whether it was within the statutory limit. His suspended sentence was revоked within five years, the maximum probationary period. However, Wilson himself notes that his discharge certificate lists no probationary period. Although a probationary period was not described, a probationary period was in fact established based on the terms of Wilson‘s release. Such implied period is binding up to the five-year limitation of
¶ 7. This Court in a similar case held, “[W]hile this is not a revocation of probation, it stands to reason that the same due process analysis applies to revocation of suspended sentence proceedings.” Artis v. State, 643 So.2d 533, 536 (Miss.1994)(citing Ross v. State, 268 Ark. 189, 594 S.W.2d 852, 853(1980)). We have also found:
The courts are empowered to revoke any or all of the defendant‘s probation or any part or all of the suspended sentence if, during the period of probation, it is found that the defendant violated the conditions of his probation/ suspended sentence.
Artis, 643 So.2d at 537(citing Moore v. State, 585 So.2d 738 (Miss.1991)).
¶ 8. The trial court in Artis did not discuss the terms and conditions of the suspended sentence with the defendant. Artis, 643 So.2d at 537. Wilson, to the contrary, was clearly aware of the terms of his sentence. When he entered his guilty pleas on April 3, 1991, the following exchange took place:
THE COURT: ... having accepted your plea of guilty to the armed robbery charge, it will bе the sentence of
the Court that you serve a term of ten years in the Mississippi Department of Corrections with the last eight years suspended, pending your future good behaviоr.... Do you understand that? DEFENDANT: Yes, sir.
THE COURT:.... So you simply need to understand, Mr. Wilson, that whenever you get out from serving these sentences, then you‘ll still have basically eight years hanging over your head, understаnd that?
DEFENDANT: Yes, sir.
THE COURT: If you mess up in eight years from the time you get out of Parchman, if you mess up, commit another crime, don‘t pay this money within ninety days after you are released from Parchmаn, then you could end up having eight years to actually go back and serve, understand that, what is called a revocation or a taking away of your eight years suspended sеntence and having to actually serve out the remainder of the sentence, do you understand that?
DEFENDANT: Yes, sir.
THE COURT: Got any questions about it?
DEFENDANT: No, sir.
¶ 9. In his brief, Wilson states, “The Due Process concerns focuses [sic] on the understanding the defendant has of his guilty plea and suspended sentence, not what is understood by the judges and lawyers.” It is apparent that not only did the judge and lawyers understand, but Wilson cleаrly understood his sentence could be revoked for bad behavior. Wilson also points to the following statute, and notes it does not provide for parole:
No person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served tеn (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person.
II. WHETHER THE TRIAL COURT ERRED IN DENYING HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
¶ 10. Wilson‘s claim of ineffective assistance of counsel arises from his belief that counsel should have objected to the reimposition of his sentence. The hearing for reimposition was held August 9, 1996, and he was not reрresented by counsel on that date. He also notes that his counsel sent an associate to appear at his grand larceny plea hearing on June 28, 1996, and believes this was ineffective. However, he notes no mistakes of associate counsel or prejudice to his case except the failure to object to reimposition of his sentence. Since he was not represented by counsel when an objection to the reimposition could have been made and since the reimposition was proper, this assignment of error is without merit.
CONCLUSION
¶ 11. Finding no error in the lower court‘s denial of post-conviction relief, the order of the Panola County Circuit Court is affirmed.
¶ 12. AFFIRMED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, SMITH AND WALLER, JJ