Eric Jermaine Thomas v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-01498-COA
CONSOLIDATED WITH
NO. 2001-KA-01499-COA
ERIC JERMAINE THOMAS
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
7/18/2001
HON. JERRY O. TERRY, SR.
STONE COUNTY CIRCUIT COURT
JIM DAVIS
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
CONO A. CARANNA, II
CRIMINAL - FELONY
POSSESSION OF CONTROLLED SUBSTANCE:
SENTENCED TO SERVE A TERM OF 3 YEARS
IN THE MDOC, TO RUN CONSECUTIVELY
WITH THE SENTENCE IN STONE COUNTY
CAUSE NO. 1871.
AFFIRMED: 05/13/2003
BEFORE McMILLIN, C.J., BRIDGES, AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
On September 21, 1995, Eric Jermaine Thomas was indicted for the crime of aggravated assault
for shooting Jason Evans with a handgun. On February 12, 1996, Thomas pled guilty and was sentenced
to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC). The Circuit
Court of Stone County suspended the execution of his sentence, and Thomas was placed in the Regimented
Inmate Discipline Program (RID).
¶2.
Due to the nature of his offense, however, Thomas was removed from RID and placed in the
general prison population. On June 3, 1996, Thomas filed a motion to reconsider sentence and the circuit
court re-sentenced him to a twenty year suspended sentence and placed him on probation for five years.
¶3.
On July 8, 2000, a petition to revoke probation was filed based on Thomas’s June 20, 2000 arrest
for possession of cocaine.1 On November 6, 2000, the Honorable John H. Whitfield, Stone County
Circuit Judge, found sufficient evidence to revoke Thomas’s probation and imposed the original sentence
of twenty years. On November 9, 2000, Judge Whitfield considered a motion to reconsider the revocation
of probation. At the hearing, Judge Whitfield concluded “I’ll take the matter under advisement. I’ll make
a ruling at some time in the future . . . He’ll remain in custody pending my ruling.”
¶4.
On November 22, 2000, Thomas was indicted for possession of cocaine. Based on the
indictment, the Stone County District Attorney filed a motion to revoke Thomas's bond pending disposition
of his probationary status and the outcome of the cocaine possession trial. In January 2001, a hearing was
held on the motion to revoke Thomas's bond before the Honorable Robert H. Walker, Stone County
Circuit Judge. Judge Walker concluded that Thomas was a danger to the community and ordered that no
bond be set on the possession charge.
¶5.
In May of 2001, Thomas filed a motion to dismiss the cocaine possession charge. At a hearing
before the Honorable Kosta N. Vlahos, Thomas asserted that the revocation of bond hearing coupled with
revocation of probation hearing constituted double jeopardy. Judge Vlahos denied the motion to dismiss.
1
Thomas had two prior revocation hearings where Judge Whitfield allowed him to remain on
probation.
2
¶6.
On July 18, 2001, Thomas was tried before the Honorable Jerry O. Terry, Sr., and the jury found
Thomas guilty of possession of cocaine. Judge Terry sentenced Thomas to serve a term of three years in
the custody of the MDOC. Judge Terry simultaneously ruled that Thomas had violated the terms of his
probation, revoked his probation and sentenced him to serve the original term of twenty years, with the
sentences to run consecutively.
¶7.
On July 24, 2001, Thomas filed a motion for new trial or, in the alternative, for a judgment
notwithstanding the verdict, which was denied. Thomas appealed his conviction for possession of cocaine
and the revocation of probation. Upon consolidation of these appeals, we find no error and affirm.
DISCUSSION
¶8.
Thomas asserts that (1) the court erred in revoking his suspended sentence and not dismissing the
drug possession charges on grounds of double jeopardy; (2) the court erred in revoking his probation
without notice and hearing; (3) his sentence exceeds the statutory maximum; and (4) revoking his
suspended sentence was clear error. Thomas's first issue will be examined in depth; however, finding the
second, third and fourth issues deal with essentially the same legal principles, they will be combined into
one issue.
I.
¶9.
WHETHER THE TRIAL JUDGE ERRED WHEN HE REVOKED BOND
AND PROBATION BECAUSE IT VIOLATED THE PROHIBITION
AGAINST DOUBLE JEOPARDY.
The Double Jeopardy Clause, contained in the Fifth Amendment of the United States Constitution,
is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Cook v. State,
671 So. 2d 1327, 1331 (Miss. 1996). In essence, the Fifth Amendment does not allow an individual to
be twice put in jeopardy of life or limb for the same offense. Id.
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¶10.
Thomas argues that the trial court erred in denying his motion for a new trial and should have
dismissed the case based on double jeopardy. First, Thomas contends that he was twice placed in
jeopardy because the court used the same facts to revoke his bond, which were presented previously at
his revocation hearing. Therefore, Thomas asserts that the possession of cocaine charges should have been
dismissed because it violated his protection against double jeopardy.
¶11.
Next, Thomas contends that, since the court previously ruled not to revoke his probation upon his
initial charge of cocaine possession, the court could not subsequently reinstate his suspended sentence after
his conviction on the possession of cocaine charge. Thomas argues this amounted to successive punishment
for the same offense. Thomas primarily relies on the cases of United States v. Dixon, 509 U.S. 688
(1993) and Blockburger v. United States, 284 U.S. 299 (1932).
¶12.
In Dixon, the United States Supreme Court considered two cases to determine whether the double
jeopardy clause was applicable. While awaiting trial, Dixon was placed on a conditional release which
prohibited any further violations of the law. Dixon, 509 U.S. at 688. If Dixon violated this condition, he
would be subject to not only a revocation of release and order of detention, but also prosecution for
contempt under D. C. Code Ann. §§ 23-1329(a). Id at 688. The D. C. statute allowed for contempt
sanctions after expedited proceedings without a jury and in accordance with principles applicable to
proceedings for criminal contempt. Id. Subsequent to his release, Dixon was arrested for possession of
cocaine with intent to distribute. Id. A criminal contempt hearing was held and the court found Dixon guilty
of criminal contempt, sentencing him to 180 days in prison. Id. at 691-92. His indictment for possession
of cocaine was later dismissed on double jeopardy grounds since the crime violating the condition of release
was the same as the crime. Id.
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¶13.
In its opinion in Dixon, the court held that it is well established that a criminal contempt charge
which is enforced in a nonsummary proceeding is a "crime in the ordinary sense." Id. at 696. The court
then relied on the "same elements" test, sometimes referred to as the "Blockburger" test, which requires
a court to inquire whether each offense required an element not found in the other. If not, the crimes are
considered the "same offense" and the double jeopardy clause bars successive prosecutions and
punishments. Id. The court noted that "the crime of violating a condition of release" could not be
"abstracted from the element of the violated condition; therefore it was double jeopardy to prosecute Dixon
for the crime of possession of cocaine." Id. at 698-99. For reasons discussed below, we conclude Dixon
is not applicable.
¶14.
The Mississippi Supreme Court and this Court have previously held that a petition to revoke
probation or to revoke suspension of a sentence is not a criminal case and not a trial on the merits of the
case. Therefore, double jeopardy protection does not apply to such hearings. See Lightsey v. State, 493
So. 2d 375, 377-78 (Miss. 1986); Ray v. State, 229 So. 2d 579, 581 (Miss. 1969); Cooper v. State,
737 So. 2d 1042, 1045 (¶¶14-15) (Miss. App. Ct. 1999).
¶15.
In Showery v. Samaniego, 814 F. 2d 200, 202 (5th Cir. 1987), the Fifth Circuit held that the
revocation of an appellate bond was equivalent to the non-criminal nature of parole and probation
revocation hearings. The court explained that:
[E]ven though the alleged basis for bond revocation is the commission of a subsequent
offense, the proceedings are not designed to obtain a conviction for the violation of that
offense. They are designed to assess the propriety of allowing the defendant, who has
already been convicted and sentenced on a separate charge, to remain free on bond. Such
proceedings are not "essentially criminal."
Id. at 203. The Fifth Circuit held that there was no double jeopardy violation. Id. at 204.
5
¶16.
In this case, the bond revoked was not that of an appellate bond. Therefore, there had been no
subsequent conviction and sentence, only an indictment. However, we find the same logic applicable.
Additionally, as in Lightsey, Thomas failed to show he was previously convicted of the crime of possession
of cocaine when the trial judge revoked his bond. Lightsey, 493 So. 2d at 377-78. Accordingly, no
further analysis of the "same elements" test is required.
¶17.
Moreover, Thomas has offered no authority to support his contention that jeopardy attaches at
probation and bail revocation hearings. Further, Judge Whitfield’s November 9, 2000 decision to
reconsider the revocation of probation did not amount to a judicial determination that would deny the
prosecution’s petition to revoke probation. Indeed, Judge Whitfield concluded “I’ll take the matter under
advisement. I’ll make a ruling at some time in the future . . . He’ll remain in custody pending my ruling.”
The subsequent consideration of the petition to revoke probation, after the jury verdict, was not sufficient
to invoke the protection of the Double Jeopardy Clause. Accordingly, this Court concludes that Thomas
did not suffer a double jeopardy violation under either the federal or state constitution. We find this issue
to be without merit.
II.
¶18.
WHETHER THE TRIAL JUDGE ERRED BY REVOKING HIS PROBATION
AND SUSPENDED SENTENCE WITHOUT NOTICE AND HEARING
AND EXCEEDED THE STATUTORY MAXIMUM IN HIS SENTENCE.
Thomas next asserts that his probation was revoked without notice or hearing and that his sentence
exceeded the statutory maximum for three reasons. First, he claims the court erred when it sentenced him
to the statutory maximum of twenty years in addition to the time Thomas had already served. Second,
Thomas claims the court imposed a sentence that exceeded the statutory maximum when it ordered that
Thomas's probation would not be terminated until he had paid all of the restitution ordered by the court.
6
Finally, Thomas claims the court summarily revoked his probation before a petition to revoke had been
filed.
¶19.
Each of these claims addresses errors by the trial court when it revoked Thomas's suspended
sentence. An order revoking a suspension of sentence or revoking probation is not appealable. Beasley
v. State, 795 So. 2d 539, 540 (¶6) (Miss. 2001) (citing Griffin v. State, 382 So. 2d 289, 290
(Miss.1980)). In Beasley, the supreme court further stated the following:
This Court is reluctant to dismiss a proceeding because one seeks the wrong remedy; and
a mere misnomer of the procedure should ordinarily not result in a dismissal; however, the
attempt to appeal an unappealable order is a total departure from the orderly
administration of justice and cannot and should not be approved.
Beasley, 795 So. 2d at 540 (¶6) (quoting Pipkin v. State, 292 So. 2d 181, 182 (Miss. 1974).
¶20.
Thomas is not without a remedy. He may pursue his claims under the Mississippi Uniform Post-
Conviction Collateral Relief Act, Miss. Code Ann. §§ 99-39-1 to 99-39-29 (Rev. 2000 & Supp. 2002).
Miss. Code Ann. § 99-39-5(1) (Supp. 2002) states in pertinent part as follows:
(1) Any prisoner in custody under sentence of a court of record of the State of Mississippi
who claims:
(g) That his sentence has expired; his probation, parole or conditional
release unlawfully revoked; or he is otherwise unlawfully held in custody
may file a motion to vacate, set aside or correct the judgment or sentence,
or for an out-of-time appeal.
This is the proper course of action for Thomas to pursue. Therefore, we decline considering these issues.
¶21. THE JUDGMENT OF THE CIRCUIT COURT OF STONE COUNTY OF
CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE (COCAINE) AND
SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS TO RUN CONSECUTIVELY WITH THE SENTENCE IN STONE
COUNTY CAUSE NO. 1871 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO STONE COUNTY.
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McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND CHANDLER, JJ., CONCUR.
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