Johnny Gene Crosby v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CP-01294-COA
JOHNNY GENE CROSBY
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
8/15/2002
HON. ROBERT G. EVANS
COVINGTON COUNTY CIRCUIT COURT
JOHNNY CROSBY (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
EDDIE H. BOWEN
CIVIL - POST-CONVICTION RELIEF
DENIAL OF POST-CONVICTION RELIEF
AFFIRMED - 10/28/2003
BEFORE MCMILLIN, C.J., MYERS AND GRIFFIS, JJ.
MCMILLIN, C.J., FOR THE COURT:
¶1.
In this case, the Court deals with yet another permutation of a recurring problem arising when the
circuit court, upon sentencing a defendant having a prior felony conviction, nevertheless proceeds to
suspend all or some part of the mandated period of incarceration.
¶2.
Johnny Crosby pleaded guilty on July 19, 2001, to an indictment for the sale of cocaine. He was
sentenced to ten years in the custody of the Mississippi Department of Corrections; however, the judgment
of sentence directed that Crosby serve only the first five years of the sentence and that the final five years
be suspended and the defendant be placed on supervised probation for that period.
¶3.
In a post-conviction relief motion, Crosby sought to have the portion of his sentence calling for five
years of supervised probation following his release from confinement removed from the sentence. He
contended that because he had been convicted of a prior felony – a fact disclosed to the trial court in his
petition to enter a guilty plea – any action purporting to suspend some portion of his confinement period
was illegal under the provisions of Section 47-7-33(1) of the Mississippi Code. In relevant part, that code
section prohibits the suspension of a sentence “where the defendant has been convicted of a felony on a
previous occasion . . . .” Miss. Code Ann. § 47-7-33(1) (Rev. 2000).
¶4.
The trial court denied Crosby any relief on his motion and Crosby perfected an appeal of that ruling
to this Court. We affirm.
¶5.
In Clark v. State, 2002-CP-00855-COA (Miss. Ct. App. Aug.19, 2003), this Court considered
a contention that an offer of a partially-suspended sentence in exchange for a guilty plea given to a
defendant who had earlier pled guilty to another felony was an illegal sentence based on his ineligibility
under Section 47-7-33(1). This Court, based on its interpretation of Robinson v. State, 836 So. 2d 747
(Miss.2002), said “under Robinson we find that if as a result of a plea bargain a prior felon voluntarily
accepts an offered suspended sentence and some form of probation, that this becomes by agreement an
enforceable sentence.” Clark, 2002-CP-00855-COA at ¶18 . While our decision in Clark v. State has
not become final as of the entry of this opinion, we, nevertheless are of the view that, at this time, the
decision accurately reflects the applicable law of this state and it is in that sense that we quote it here.
¶6.
We can find no reasoned basis to distinguish the circumstances of this case from those in Clark and
we, therefore, conclude that Crosby’s sentence as entered is enforceable.
2
¶7.
THE JUDGMENT OF THE CIRCUIT COURT OF COVINGTON COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO COVINGTON COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
3
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