Ervin McClinton v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-01588-COA
ERVIN MCCLINTON
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF TRIAL COURT JUDGMENT: 08/29/2000
TRIAL JUDGE:
HON. GRAY EVANS
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
PRO SE
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
DISTRICT ATTORNEY:
FRANK CARLTON
NATURE OF THE CASE:
CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:
MOTION FOR POST-CONVICTION RELIEF DENIED
DISPOSITION:
AFFIRMED - 10/09/2001
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
10/30/2001
BEFORE McMILLIN, C.J., THOMAS, AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1. Ervin McClinton was sentenced to serve ten years in the state penitentiary for the offense of the sale of
cocaine. The sentencing court suspended said sentence and placed him on probation for a term of two
years. On March 23, 1998, petitioner's probation was revoked and he was ordered to serve a term of ten
years in the custody of the Mississippi Department of Corrections. On March 30, 1998, McClinton's field
officer filed an affidavit with the Sunflower County Circuit Court setting forth that McClinton had not
conducted himself properly and had materially violated the conditions of his probation by: failing to report
regularly, violating the law, failing to pay supervision fines, and refusing to submit to chemical analysis. On
April 7, 1998, the Circuit Court of Sunflower County filed an order revoking his probation. On June 10,
2000, McClinton filed a motion to show cause for reinstatement of probation and sought to be re-admitted
to probation. The circuit court denied this relief. On appeal McClinton alleges that he was denied due
process of law when: 1) the trial court failed to inform him of the conditions of his probation at the time it
suspended sentence and placed him on probation, 2) the trial court failed to inquire into his financial ability
to pay fines at the time sentence was imposed, 3) the trial court revoked his probation on account of
accusation of new criminal misconduct, 4) the trial court failed to hold a preliminary hearing to determine if
he had violated the terms of his probation, and 5) the trial court failed to inform him of the reasons for which
his probation was being revoked. Finding no error, we affirm.
FACTS
¶2. On November 11, 1997, Ervin McClinton pled guilty to the offense of the sale of cocaine. At
sentencing he represented to the court that he was the father of five children and his home had burned down
two weeks prior to the sentencing hearing. He stated that he was employed, had corrected his ways and
was the sole support for his children. The court sentenced him to ten years imprisonment, suspended the
same, and placed him on probation for two years.
¶3. Just a few months later, McClinton was arrested for aggravated assault and armed robbery. Because of
this offense and the other probation violations, his probation was revoked and he was sentenced to serve
the original ten years. At the probation revocation hearing, McClinton admitted to the parole violations but
denied that he had committed the armed robbery or aggravated assault. Those criminal charges were later
dismissed.
LAW AND ANALYSIS
¶4. On appeal, a reviewing court should not disturb a lower court's decision to deny a petition for postconviction relief unless the court's factual findings are clearly erroneous. However, where questions of law
are raised the applicable standard of review is de novo. Eldridge v. State, 764 So. 2d 515 (¶8) (Miss. Ct.
App. 2000) (citing Brown v. State, 731 So. 2d 595 (¶6) (Miss. 1999)).
¶5. Minimum due process requirements have been imposed for parole revocation hearings. Morrissey v.
Brewer, 408 U.S. 471, 485-87 (1972). The same due process requirements apply to the probation
revocation procedure as held by Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). In Riley v. State, 562
So. 2d 1206, 1210 (Miss. 1990), the Mississippi Supreme Court adopted the minimum due process
requirements in a probation revocation as set forth in Gagnon. For a defendant to be guaranteed full
protection of the law there must be:
(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer
or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and
detached' hearing body such as a traditional parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and
reasons for revoking [probation or] parole.
Id. (citing Gagnon, 411 U.S. at 786.)
¶6. McClinton alleges that his due process rights were first violated when the sentencing court failed to
inform him of the terms and conditions of his probation at the time it suspended sentence and placed him on
probation. This first claim is without merit. The terms of McClinton's probation were clearly set forth in the
court order. In Artis v. State, 643 So. 2d 533, 537 (Miss. 1994), the court held that due process requires
that the trial judge at least orally inform the defendant of the terms and conditions upon which his
suspended sentence is contingent before it may be properly revoked for violations of those terms and
conditions. However, that case does not require a court to orally inform the probationer of the terms and
conditions of his probation, when such information has been recorded in written form. Id.
¶7. McClinton next claims that his due process rights were violated because the sentencing court failed to
inquire about his financial ability to pay fines and court costs. He cites Bearden v. Georgia, 461 U.S. 660
(1983), in support of this claim. In Bearden, the Supreme Court held that due process requires a court to
inquire into the reasons why a defendant failed to pay a fine or restitution when failure to pay is the basis for
the possible revocation of a defendant's probation. Id at 672.
¶8. This case is not relevant to the issue at hand. McClinton's claims concern the sentencing court and the
terms of his probation. The Bearden case concerns the procedures to be followed at a probation
revocation hearing, not at the original sentencing. Further, McClinton did not claim inability to pay or
indigence as a defense at the revocation hearing. It should also be noted that his probation was revoked on
three other grounds, namely: failure to regularly report, refusal to submit to chemical analysis and criminal
misconduct.
¶9. McClinton's third alleged due process violation involves the felony charges for which he was arrested
while on probation. In effect, he claims that his probation should be reinstated because these criminal
charges were dismissed and he was never convicted of the crimes. This assertion of error must also fail. It is
not necessary that a defendant be convicted of crimes charged to suffer revocation of his probation.
Younger v. State, 749 So. 2d 219 (¶12) (Miss. Ct. App. 1999) (citing Berdin v. State, 648 So. 2d 73,
79 (Miss. 1994)). Probation may be revoked upon a showing that the defendant "more likely than not"
violated the terms of probation. Id.
¶10. McClinton next alleges that his due process rights were violated when the court failed to hold a
preliminary hearing to determine if he violated the terms of his probation. In Gagnon, the Court concluded
that a probationer, like a parolee, is entitled to both a preliminary and final revocation hearing under "the
conditions specified in Morrissey." Gagnon, 411 U.S. at 782. McClinton's claim that he was not afforded
this preliminary hearing is unsuccessful because he admitted to having waived this hearing in his appeal brief.
See Grayson v. State, 648 So. 2d 1129, 1133 (Miss. 1994).
¶11. Finally, McClinton claims that the trial court failed to inform him of the reasons his probation was being
revoked. This claim is completely without merit. The transcript of the revocation hearing reveals that
McClinton was told that the court possessed an affidavit listing violations of the terms of his probation. The
court then began to question him about the specific violations listed and asked McClinton if he had
committed the stated violations. McClinton admitted to violating his probation under all listed conditions
except he denied having committed the aggravated assault and armed robbery for which he was arrested.
¶12. It is the opinion of this Court that McClinton's probation was properly revoked and all minimum due
process requirements were met.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING
POST-CONVICTION RELIEF IS HEREBY AFFIRMED. COSTS ARE ASSESSED TO
SUNFLOWER COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND BRANTLEY, JJ., CONCUR.
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