Boston George Grace v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-01292-COA
BOSTON GEORGE GRACE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
6/1/2004
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
BOSTON GEORGE GRACE (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED
AFFIRMED - 06/28/2005
BEFORE BRIDGES, P.J., CHANDLER AND ISHEE, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
In October of 2002, Boston George Grace failed to meet with his supervising officer, thereby
violating the terms of his probation. The Circuit Court of Harrison County subsequently revoked his
probation and sentenced him to serve a term of four years in the custody of the Mississippi Department of
Corrections. Following the revocation and sentencing, Grace’s counsel filed a motion to reconsider, but
the motion was denied. Grace then filed with the court a petition for post-conviction relief. The petition
was denied, so Grace has appealed to this Court and raises the following two issues:
I. WAS THE CIRCUIT COURT’S REVOCATION OF GRACE’S PROBATION UNLAWFUL,
THEREBY SUBJECTING HIM TO AN ILLEGAL SENTENCE?
II. WAS GRACE PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE HEARING
ON HIS MOTION TO RECONSIDER?
¶2.
Finding both issues without merit, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3.
On February 18, 2002, Grace pleaded guilty in the Circuit Court of Harrison County to possession
of a controlled substance. The court accepted the recommendation of the State and sentenced him to serve
a term of eight years, with seven suspended, in the custody of the MDOC followed by three years of postrelease supervision. The court further specified in the sentencing and probation order that the suspended
portion of said sentence is based upon, inter alia, the following conditions: (a) that Grace report to his
supervising officer as directed; (b) that Grace pay to the MDOC thirty dollars per month until discharged
from supervision; and (c) that Grace pay court costs and a $1,000 fine.
¶4.
On August 31, 2002, Grace was released from the custody of the MDOC and placed under
earned-release supervision, and the MDOC officer to whom he was assigned to report was Officer Mark
Brooks. Grace was scheduled to remain under earned-release supervision only until October 8, 2002, at
which time he was to be discharged to post-release supervision. Once discharged to post-release
supervision, Officer Brooks would cease to be Grace’s supervising officer, so on October 1, Officer
Brooks contacted Grace and instructed him to report the following day to his new probation officer, Jimmy
Shows. Grace, however, failed to do so.
¶5.
On October 18, 2002, Officer Shows left a message at Grace’s home instructing Grace to report
to his office. Grace was never seen nor heard from, so on November 6, Officer Shows filed with the
Circuit Court of Harrison County a petition to revoke Grace’s probation. Grace was subsequently arrested
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on July 13, 2003, at which time Officer Shows filed with the court an amended petition stating that Grace
failed to report as required to his probation officer from October 2002 through June 2003, and that Grace
also failed to pay any portion of his ordered payments. Grace waived his right to a preliminary probation
revocation hearing, and at the full hearing on December 8, 2003, he admitted to violating his probation.
The court then ordered that his probation be revoked and amended the original eight year term by reducing
Grace’s sentence to four years in the custody of the MDOC. Shortly thereafter, Grace’s attorney filed a
motion to reconsider said sentence, but the motion was denied.
¶6.
On February 25, 2004, Grace filed a petition for post-conviction relief with the Circuit Court of
Harrison County. The petition was denied, and Grace now presents to this Court his challenge to said
denial.
LAW AND ANALYSIS
I. JURISDICTION TO REVOKE PROBATION
¶7.
Grace maintains that his probation was unlawfully revoked and that, as a result, he is serving an
illegal sentence. In particular, he claims that, by failing to report to Officer Shows on October 2, he
violated the terms of his earned-release, and not post-release, supervision and that matters concerning
earned-release supervision fall solely under the jurisdiction of the MDOC. He, therefore, concludes that
the sentence imposed by the Circuit Court of Harrison County following the December 8 hearing was illegal
because the circuit court had no jurisdictional authority to preside over a hearing that involved the
revocation of earned-release supervision.
¶8.
We, however, find this argument unpersuasive. The authority to revoke probation is vested only
in the courts, under Miss. Code Ann. § 47-7-37 (Rev. 2004). Rodriguez v. State, 839 So. 2d 561, 563
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(¶6) (Miss. Ct. App. 2003). Accordingly, probationers remain under the jurisdiction of the courts until the
entire term for which they were sentenced has expired, including any and all portions ordered suspended.
Brown v. State, 872 So. 2d 96, 99 (¶13) (Miss. Ct. App. 2004). The Harrison County Circuit Court
sentenced Grace, in February of 2002, to serve eight years in the custody of the MDOC with seven years
suspended; therefore, Grace would have remained under that court’s jurisdiction for the entire eight year
sentence. Regardless of whether he was under earned- or post-release supervision at the time he initially
violated probation, Grace admitted to violating his probation in the months that followed, and when he
appeared before the Harrison County Circuit Court at his probation revocation hearing in December of
2003, he had not been released from its jurisdiction. Accordingly, the court properly exercised jurisdiction
over Grace in revoking his probation, so the reduced sentence that he now serves is unquestionably legal.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
¶9.
In his second issue, Grace argues that he received ineffective assistance of counsel at the hearing
on his motion for reconsideration because his attorney failed to advance the jurisdictional argument
discussed above. In Leatherwood v. State, the Mississippi Supreme Court stated that “[t]he burden of
proving ineffective assistance of counsel is on the defendant to show that the counsel’s performance was
(1) deficient, and that (2) the deficient performance prejudiced the defense. If the defendant fails to prove
either component then reversal of a conviction or sentence is not warranted.” Leatherwood v. State, 473
So. 2d 964, 968 (Miss. 1985) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
¶10.
In the absence of a valid claim as to lack of jurisdiction, we cannot possibly hold that the
performance of Grace’s attorney was deficient, and without such deficiency, Grace’s defense clearly
suffered no prejudice. Accordingly, Grace’s argument as to this issue is also without merit.
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¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.
KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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