Raymond Johnson v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-01640-COA
RAYMOND JOHNSON
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
08/23/2000
HON. JOHN H. WHITFIELD
HARRISON COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
CONO CARANNA
CIVIL - POST-CONVICTION RELIEF
PETITION FOR POST-CONVICTION COLLATERAL
RELIEF DENIED
AFFIRMED - 12/11/2001
1/3/2002
BEFORE SOUTHWICK, P.J., BRIDGES, LEE, AND CHANDLER, JJ.
LEE, J., FOR THE COURT:
¶1. Raymond Johnson was indicted for felony driving under the influence. Thereafter, Johnson entered a
plea of guilty to the charge and was sentenced to a term of five years with four years suspended and one
year to be served in the custody of the Mississippi Department of Corrections. Upon release from the
Mississippi Department of Corrections, Johnson was placed under three years of post-release supervision
by the Mississippi Department of Corrections. The supervision was based on several conditions, some of
which Johnson confessed he breached. Therefore, Johnson was returned to the Mississippi Department of
Corrections to serve the four year sentence which had previously been suspended. Johnson filed a petition
for post-conviction collateral relief which was denied by the trial judge. Thereafter, Johnson filed a timely
pro se appeal and presents the following issue: whether the sentence imposed by the trial judge exceeded
the maximum allowed by law.
FACTS
¶2. Johnson pled guilty to the felony of a third offense of driving under the influence. Johnson was sentenced
as stated above for this crime. However, while Johnson was on probation, a petition for revocation of
probation was filed, and Johnson confessed that he had breached some of the conditions of his probation.
Therefore, the trial judge entered an order revoking the probation and sentenced Johnson to serve four
years in the Mississippi Department of Corrections.
¶3. Thereafter, Johnson filed a petition for post-conviction collateral relief which the trial judge denied
without conducting an evidentiary hearing.
DISCUSSION
I. WHETHER THE SENTENCE IMPOSED BY THE TRIAL JUDGE EXCEEDED THE
MAXIMUM ALLOWED BY LAW.
¶4. Johnson argues that the trial court erred in sentencing him because he received an eight year sentence as
opposed to a five year sentence - - a five year sentence being the maximum sentence allowable under Miss.
Code Ann. § 63-11-30(1)(a)(2)(c) (Supp. 2000). Johnson cites the cases of Goss v. State, 721 So. 2d
144 (Miss. 1998), and Carter v. State, 754 So. 2d 1207 (Miss. 2000), to support his contention that the
sentence imposed is in excess of the maximum allowed by law. Additionally, Johnson argues that pursuant
to the language of Miss. Code Ann. §47-7-34 (Rev. 2000) he is entitled to have the fifteen months that he
served on post-release supervision deducted from the four year suspended sentence that was reinstated by
the trial judge.
¶5. Mississippi Code Annotated § 63-11-30(2)(c) (Supp. 2000) addresses the sentencing for a third
conviction of driving under the influence and provides for imprisonment of not less than one year nor more
that five years.
¶6. The State argues that the sentence which is currently being served by Johnson is within the statutory
sentencing guidelines of Miss. Code Ann. § 63-11-30(2)(c) (Supp. 2000) and was authorized by Miss.
Code Ann. § 47-7-34 (Rev. 2000). The State contends that the one year period that was served in the
Mississippi Department of Corrections and the four year period that was suspended equaled five years
which is allowed by § 63-11-30(2)(c). Accordingly, the three years of post-release supervision was not an
additional period to be added to the aforementioned years, but simply was the time which Johnson would
be under post-release supervision. Additionally, the State asserts that his sentence was less than five years
because he was only under post-release supervision for three of the remaining four years imposed by the
trial judge.
¶7. For the reasons asserted by the State, we agree that the sentence imposed did not exceed the five year
maximum sentence allowed by Miss. Code Ann. § 63-11-30(2)(c) or violate the language of § 47-7-34.
Having reached this conclusion, we look to the case of Goss v. State, 721 So. 2d 144 (Miss. 1998),
which was cited by Johnson to support his argument.
¶8. A review of Goss, reveals that Johnson's argument is misplaced and offers him no relief. Johnson has
failed to follow the complete history of Goss v. State and Carter v. State.
¶9. In Carter v. State, the Mississippi Supreme Court held that the holding in Goss v. State, was
overruled. Carter v. State, 754 So. 2d 1207, 1210 (¶8) (Miss. 2000). In Carter, the Mississippi Supreme
Court addressed the issue of probation and whether the probation imposed on Carter caused his sentence
to exceed the maximum allowed by law. Id. at (¶1). Carter is not directly applicable to the case at bar
because it dealt with the issue of probation, as opposed to post-release supervision. The Mississippi
Supreme Court has acknowledged that post-release supervision is different from probation because it does
not allow the combined terms to exceed the maximum sentence allowed by the statute in question. Id. at
(¶4). Consequently, as discussed earlier, Johnson's sentence does not exceed the maximum sentence
allowed by statute; therefore, the holding in Carter provides no support for Johnson's argument, and this
issue is without merit. Nonetheless, in addition to this argument, Johnson has asserted that he was entitled to
credit for the fifteen months he had spent in the post-release program prior to the revocation.
¶10. The record reflects that Johnson was under "post-release supervision" as opposed to probation.
However, for purposes of dealing with the issue of the revocation and the proper allowance for time served,
the procedures are governed just as those for supervised probation. See Miss. Code Ann. §§ 47-7-34(2)
& 47-7-37 (Rev. 2000). With this in mind, § 47-7-37 states:
Thereupon, or upon an arrest by warrant as herein provided, the court, in term time or vacation, shall
cause the probationer to be brought before it and may continue or revoke all or any part of the
probation or the suspension of sentence, and may cause the sentence imposed to be executed or may
impose any part of the sentence which might have been imposed at the time of the conviction.
This pronouncement is reinforced by the Mississippi Supreme Court case of Wilson v. State, where a
similar issue was raised. Wilson v. State, 735 So. 2d 290 (¶¶4-7) (Miss. 1999). Wilson argued that the
trial court erred when it reimposed the eight year suspended sentence. Id. at (¶4). The following is an
excerpt of the facts and the court's conclusion:
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.
Wilson's sentence was reimposed three years, four months, and twenty-one days after he was
discharged on March 19, 1993.
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.
Id. (citations omitted). Therefore, there is no merit to this assignment of error.
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING
POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO HARRISON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
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