Leonard Boutwell v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-CP-00998-COA
LEONARD LEE BOUTWELL
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
5/24/2001
HON. ROBERT WALTER BAILEY
LAUDERDALE COUNTY CIRCUIT COURT
LEONARD BOUTWELL (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
BILBO MITCHELL
CIVIL - POST-CONVICTION RELIEF
DENIAL OF POST-CONVICTION RELIEF WITH
REGARD TO REVOCATION OF PROBATION
AFFIRMED - 06/03/2003
BEFORE MCMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
MCMILLIN, C.J., FOR THE COURT:
¶1.
Leonard Lee Boutwell pled guilty to felony driving under the influence in 1995 and was sentenced
to a term of five years. Four and one-half years of the sentence were suspended and it was ordered that
Boutwell be placed on supervised probation for five years after his release from his initial incarceration
period of six months. Some time after Boutwell’s release from initial confinement, the State successfully
moved to have Boutwell’s probation revoked when the trial court determined that Boutwell had violated
the terms of his probationary release. According to the transcript of that revocation hearing, the trial court
reviewed the evidence of Boutwell’s continuing difficulties with the law and concluded, “I don’t have any
option but to revoke his probation. He’s going to be sentenced to serve his two and [sic] half years with
the Mississippi Department of Corrections.”
¶2.
Despite this oral pronouncement, the formal written order revoking probation dated and entered
the same day as the hearing contained the following provision: “It is therefore ordered and adjudged that
the defendant’s probation is revoked and he is sentenced to serve four (4) and ½ years in the custody of
the Mississippi Department of Corrections.”
¶3.
Section 47-7-37 of the Mississippi Code makes plain that the court has some measure of discretion
in deciding on the appropriate sanction for a probation violation when it says that, “the court . . . 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 conviction.” Miss. Code Ann. § 47-7-37 (Rev. 2000) (emphasis supplied).
Thus, it was permissible under the law for the court to sentence Boutwell to serve something less than the
entire suspended portion of his sentence. Because of the discretion afforded the court in the matter of
appropriate punishment upon probation revocation, we possibly deal with something different than a simple
misstatement by the court that could be rectified summarily upon its discovery.
¶4.
Boutwell filed a motion for post-conviction relief seeking to have the oral pronouncement by the
trial court of a two and one-half year sentence enforced as the lawful sentence of the court, rather than the
four and one-half year sentence recited in the court’s written order.
¶5.
The trial court, in denying Boutwell’s post-conviction relief motion, stated that “the Court misstated
the sentence to be imposed during the revocation hearing.” The court then said that “the Petitioner was in
fact sentenced to serve the suspended portion of his sentence, which was four and one half years.”
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¶6.
The law in most jurisdictions appears clear that, when there is a direct conflict between the oral
pronouncement of sentence and the ensuing written judgment of sentence, the oral pronouncement of the
sentencing court controls. U.S. v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001); Evans v. State, 675
So. 2d 1012, 1015 (Fla. 4 Dist. Ct. App.1996); Vilicic v. State, 637 So. 2d 978, 978 (Fla. 1 Dist. Ct.
App.1994); State v. Hess, 533 N.W. 2d 525, 528 (Iowa 1995); State v. Lane, 957 P.2d 9 (¶ 40)
(Mont. 1998); Coffey v. State, 979 S.W. 2d 326, 328 (Tex. Crim. App.1998).
¶7.
The rationale for this rule appears to arise out of the widely-held view that one of a defendant’s
fundamental rights is that he be present in open court when sentence against him is pronounced. Lane, 957
P.2d at (¶ 38). To do otherwise, one court observed, would be to permit a defendant to be sentenced in
absentia. Scott v. U.S., 434 F.2d 11, 20 (5th Cir. 1970).
¶8.
Nevertheless, despite the rule followed in other jurisdictions that the oral pronouncement prevails
over a directly conflicting written order, there is authority in Mississippi for the proposition that the written
sentence controls. Temple v. State, 671 So. 2d 58, 58 (Miss. 1996). In Temple, the issue was whether
an oral announcement of sentence that contained punitive provisions omitted from the subsequent written
judgment would, nevertheless, apply. Id. at 58. In that situation, the supreme court refused to uphold the
harsher punishment provisions that were not subsequently memorialized in the written judgment. Id. at 59.
That circumstance is directly opposite from the situation we face where the oral pronouncement was more
lenient and there would appear to be at least some question as to whether the same considerations invoked
in Temple would apply. However, more to the point in this case, there is also authority, even in
jurisdictions following the general rule of giving precedence to the oral announcement, that, when there is
some ambiguity in the sentence – rather than an irreconcilable conflict – there may be further inquiry that
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takes into account both the oral pronouncement and the written order in an effort to discern the court’s
actual intent. U.S. v. Villano, 816 F.2d 1448, 1451 (10th Cir. 1987).
¶9.
The trial court in the case before us spoke of its decision to sentence Boutwell to “his two and one-
half years” (emphasis added). It does not appear logical for the court to use that phrasing had it been the
court’s actual intent to sentence Boutwell to serve something less than his entire suspended sentence. The
Villano case, in suggesting examples of situations that might give rise to ambiguity, specifically mentioned
the situation “when otherwise unambiguous words are used in an unusual way.” Villano, 816 F.2d at 1453
n.6. In light of the court’s phrasing in its oral pronouncements in open court concerning Boutwell's sentence
and the difference that appeared in the written order entered shortly thereafter, we conclude that, rather
than facing a direct conflict, we confront a situation where a measure of ambiguity is present. That
ambiguity permits additional inquiry in order to determine what the true intention of the court was in
pronouncing sentence, rather than forcing a decision to pick one provision over the other based on a rule
that gives no regard to what the court may have truly intended.
¶10.
Boutwell’s right to have that ambiguity resolved was satisfied when the circuit court, in considering
his post-conviction relief motion, reviewed the matter and affirmatively determined that it was the court’s
intention from the beginning to sentence Boutwell to the entire remaining term of four and one-half years
and that the contrary statement in open court was, in fact, a simple misstatement. Certainly, it would have
been preferable to immediately bring Boutwell back before the court and correct the court’s misstatement
in a face-to-face encounter. However, there is no indication that the court’s error in reciting the length of
Boutwell’s remaining sentence in open court was noted by anyone until it was raised by Boutwell himself
in his motion. At that point, the matter was dealt with promptly and the ambiguity was resolved. We do
not find reversible error in the trial court’s resolution of this matter.
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¶11. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY
DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF APPEAL ARE
ASSESSED TO LAUDERDALE COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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