Bobby Burks, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01252-COA
BOBBY BURKS, JR.
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
07/09/2008
HON. LAWRENCE PAUL BOURGEOIS, JR.
HARRISON COUNTY CIRCUIT COURT
BOBBY BURKS, JR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LISA LYNN BLOUNT
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 01/19/2010
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
On November 9, 2000, Bobby Burks, Jr., pleaded guilty to one count of possession
of a controlled substance with intent to transfer or distribute. The Harrison County Circuit
Court sentenced Burks to twenty years, but suspended the sentence and gave Burks credit for
time served. Burks was also placed on five years’ post-release supervision and ordered to
pay a fine and court costs.
¶2.
On June 14, 2004, after a hearing at which Burks was present, the trial court revoked
his probation and ordered Burks to serve the remainder of his twenty-year sentence, with
credit for time served. Burks filed two successive motions to reconsider, which the trial court
denied.
¶3.
On June 15, 2006, Burks filed his motion for post-conviction relief. The trial court
denied Burks’s motion, finding that the same allegations were raised in his two previous
motions to reconsider. The trial court did address the merits, finding that Burks failed to
allege any cognizable relief under the post-conviction-relief statutes. Burks now appeals,
asserting the following issues: (1) the original sentence was not imposed within the
requirements of the law; (2) the trial court did not have the authority to revoke his probation;
(3) the post-release supervision was void because there was no term of incarceration prior
to post-release supervision; (4) the petition to revoke probation was based upon insufficient
and incorrect claims; and (5) a complete record was not provided to him on appeal. As
Burks’s first three issues are related, we will address them together.
STANDARD OF REVIEW
¶4.
A trial court’s denial of post-conviction relief will not be reversed absent a finding
that the trial court’s decision was clearly erroneous. Smith v. State, 806 So. 2d 1148, 1150
(¶3) (Miss. Ct. App. 2002). However, when issues of law are raised, the proper standard of
review is de novo. Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).
DISCUSSION
I. SENTENCE AND REVOCATION
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¶5.
In his first two issues on appeal, Burks argues that the trial court improperly sentenced
him and improperly revoked his probation. We note that these two issues were not argued
in Burks’s motion for post-conviction relief; thus, his arguments on appeal are subject to the
procedural bar. See Jones v. State, 915 So. 2d 511, 513 (¶7) (Miss. Ct. App. 2005).
Regardless of the procedural bar, we will address the merits.
¶6.
Although Burks argues in his first issue that his sentence fails to comply with
Mississippi Code Annotated section 47-7-34 (Rev. 2004) and Sweat v. State, 912 So. 2d 458
(Miss. 2005), he fails to argue or discuss their relevance to his case other than making vague
assertions. Section 47-7-34 deals with the imposition of post-release supervision for prior
convicted felons. In Sweat, the supreme court modified Joe Earl Sweat’s sentence to reflect
the appropriate period of post-release supervision, both supervised and unsupervised. Sweat,
912 So. 2d at 461 (¶10). Burks was sentenced to twenty years, which was well within the
statutory guidelines for possession with intent to distribute, and his term of incarceration plus
his post-release supervision does not exceed the maximum sentence of thirty years as
prescribed by statute. See Miss. Code Ann. § 41-29-139(b)(1) (Rev. 2009). This issue is
procedurally barred and without merit.
¶7.
Burks also argues in his second issue that the trial court did not have the jurisdiction
to revoke his probation and sentence him to serve the remainder of his sentence. The trial
court clearly had jurisdiction to suspend Burks’s sentence, as well as to revoke his suspended
sentence and impose the original term of incarceration. Johnson v. State, 925 So. 2d 86, 9293 (¶12) (Miss. 2006). This contention is without merit.
¶8.
Burks also claims in his third issue that his post-release supervision was void because
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there was no term of incarceration prior to the post-release supervision. Burks’s arguments
to support this contention are the same as stated above, namely that the trial court did not
have the jurisdiction to reinstate his suspended sentence. We note that Burks did serve
approximately 157 days in jail, which the trial court credited toward his sentence. This issue
lacks merit.
II. PETITION TO REVOKE WAS INVALID
¶9.
In his next assignment of error, Burks argues that the petition to revoke his probation
was invalid because it was based upon insufficient and incorrect claims. We first note that
Burks has argued throughout his brief that he was unable to defend himself because he was
not present during the revocation hearing. However, according to the transcript of the
revocation hearing, Burks was in attendance at the hearing and admitted that he had violated
the terms of his suspended sentence, namely that: he failed to report to his probation officer;
he failed to submit to drug testing; and he was also wanted by Lincoln County for failure to
report to his probation officer there. Burks also admitted that he knew he would return to jail
if he violated the terms of his suspended sentence.
¶10.
Burks further claims that because he was previously convicted of a felony, the trial
court erred in sentencing him to probation pursuant to Mississippi Code Annotated section
47-7-33(1) (Rev. 2004). Section 47-7-33 prohibits the imposition of a suspended sentence
and supervised probation on a prior convicted felon.
Post-release supervision is the
alternative to probation designed specifically for previously convicted felons. See Gaston
v. State, 817 So. 2d 613, 619 (¶20) (Miss. Ct. App. 2002). Burks was not sentenced to
probation; rather, his sentence was suspended, and he was placed under post-release
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supervision pursuant to section 47-7-34. This issue is without merit.
III. RECORD ON APPEAL
¶11.
In his final issue, Burks contends that the record provided by the Harrison County
Circuit Clerk was incomplete and asks us to reverse and remand. Burks contends that he
filed a motion for post-conviction relief on December 14, 2007, which should have been
included in the record as it was relevant to his appeal. Burks claims that the trial court never
considered this particular motion. The case before this Court is an appeal of the order
entered in Cause No. A2401-06-186. In his designation of the record, Burks asked for “all
clerk papers, to include, the post-conviction relief petition, and all attachments filed in this
action.” The record includes his guilty plea, his revocation hearing, and other motions filed
under this particular cause number. Burks did file a motion for post-conviction relief on
December 14, 2007, but this motion was filed in Cause No. A2401-07-451. Cause No.
A2401-07-451 was not designated as part of the official record in this case. The record as
submitted by the clerk was the record which Burks requested. This issue is without merit.
¶12. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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