Joel Britt v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CP-01885-COA
JOEL BRITT
APPELLANT
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:
APPELLEE
8/29/2002
HON. C. E. MORGAN, III
WEBSTER COUNTY CIRCUIT COURT
JOEL BRITT (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DOUG EVANS
CIVIL - POST CONVICTION RELIEF
POST-CONVICTION COLLATERAL RELIEF DENIED.
AFFIRMED - 09/30/2003
BEFORE KING, P.J., BRIDGES AND LEE, JJ.
BRIDGES, J., FOR THE COURT:
¶1.
Joel Britt pled guilty to accessory after the fact of burglary on January 11, 1999. Britt was given
three years of supervised probation, and a five year suspended sentence. On September 27, 2000, a
hearing was held in which Britt's supervisory probation was revoked for testing positive for marijuana and
cocaine use, and for being indicted for three sales of marijuana. It was at this time that Britt's suspended
five year sentence was imposed. On August 26, 2002, Britt filed for post-conviction relief which the trial
court later denied. Britt then filed a notice of appeal to this Court. On December 30, 2002, the court
issued a deficiency notice to Britt but later gave him an extension to file his brief. On January 6, 2003, well
within the extension period, Britt submitted his post-conviction relief petition with the trial court, apparently
as a substitute for his appellate brief. The State makes an issue out of whether Britt's motion should be
treated as an appellate brief, however, this Court, finding that the Appellant is pro se, has decided to grant
lenience on this procedural matter and will decide Britt's issue on the merits.
STATEMENT OF THE ISSUE
WHETHER BRITT WAS SUBJECTED TO DOUBLE JEOPARDY.
ANALYSIS
¶2.
Britt claims that he was denied his right against double jeopardy by the reinstatement of his original
sentence. Britt complains that there was no reduction of his five year sentence for the period of time during
which he was on probation. Britt asserts that the time he was on probation should count as a sentence
previously served, and there should be a corresponding reduction of his five year sentence.
¶3.
This Court, in Brunson v. State, 796 So. 2d 284, 288 (¶15) (Miss. Ct. App. 2001), held that it
was not a violation of double jeopardy to sentence a prisoner to his original sentence after his probation
was revoked. In that case, Brunson was given a four year and three month sentence, after his probation
was revoked. Id. at 287 (¶12). He too complained that this suspended sentence was being "added" to
the time he had been on probation. Id. This Court pointed out that time spent on probation is not to be
considered part of a prisoner's sentence.
Only if the Court attempts to administer a longer sentence than what was originally
conferred upon the defendant will it be considered double jeopardy. However, reinstating
the suspended sentence first levied upon the defendant is proper and is not in violation of
the double jeopardy clause as Brunson would suggest.
Id. at 287 (¶14) (citations omitted).
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¶4.
Also in Carter v. State, 754 So. 2d 1207, 1209 (¶5) (Miss. 2000), the Mississippi Supreme
Court stated that "probation," as was given in the instant case, was not to be construed as part of a prison
sentence and was therefore not subject to the "totality" of the sentence concept as stated in Mississippi
Code Annotated section 47-7-34 (Rev. 2000).
Miss. Code App. § 47-7-34 (Supp. 1999) provides, in pertinent part, that "no part of the
time that one is on probation shall be considered as any part of the time that he shall be
sentenced to serve."
Id. at 1209 (¶7).
¶5.
The record reflects that Britt's original five year sentence was reinstated only after his three year
supervised probation had been revoked. The reason for the revocation was Britt's indictment for three
sales of marijuana and for testing positive for marijuana and cocaine use. Based on the aforementioned
caselaw, the reinstatement of the suspended sentence did not amount to double jeopardy. Therefore, this
issue lacks merit.
¶6.
THE JUDGMENT OF THE WEBSTER COUNTY CIRCUIT COURT DENYING POSTCONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO
WEBSTER COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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