James T. Hobson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-00660-COA
JAMES T. HOBSON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/26/2004
HON. THOMAS J. GARDNER, III
PONTOTOC COUNTY CIRCUIT COURT
JAMES T. HOBSON (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED.
AFFIRMED - 03/22/2005
BEFORE LEE, P.J., GRIFFIS AND ISHEE, JJ.
LEE, P.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
James Hobson pled guilty to a charge of fondling a child in July 2002. The trial court
sentenced Hobson to serve a term of fifteen years, with ten years suspended, and five years on postrelease supervision.
¶2.
Hobson filed a motion for post-conviction relief seeking to modify his sentence by deleting
the ten suspended years. Hobson claimed that the sentence was illegal because it exceeded that
maximum number of years provided in the statute. Hobson also argued that he received ineffective
assistance of counsel because his attorney failed to object to the purportedly illegal sentence.
¶3.
Finding that the trial court did not err in denying Hobson’s motion, we affirm the judgement
of the trial court.
STANDARD OF REVIEW
¶4.
The standard of review for a denial of a post-conviction motion is well-stated: A reviewing
court should not disturb a lower court's decision to deny a petition for post-conviction relief unless
the court's factual findings are clearly erroneous, but where questions of law are raised the applicable
standard of review is de novo. Eldridge v. State, 764 So. 2d 515 (¶8) (Miss. Ct. App. 2000).
I.
DID THE TRIAL COURT ERR IN DENYING HOBSON’S MOTION FOR POSTCONVICTION RELIEF?
¶5.
Hobson pled guilty to fondling a child under the age of sixteen, in violation of Mississippi
Code Annotated Section 97-5-23 (Rev. 2000). Under the statute, Hobson could receive fifteen years
as a maximum sentence. Miss. Code Ann. Sec. 97-5-23. Ten of the fifteen years of Hobson’s
sentence were suspended, therefore he will only be incarcerated for five of the fifteen years. In
addition to this time, Hobson was sentenced to five years post-release supervision under Miss. Code.
Ann. Sec. 47-7-34 (Rev. 2004). This section provides in pertinent part, “the total number of years
of incarceration plus the total number of years post-release supervision shall not exceed the
maximum sentence authorized to be imposed by law for the felony committed.” Miss. Code Ann.
Sec. 47-7-34 (Rev. 2004). Hobson argues that he was sentenced to a twenty year term, counting his
five year sentence, his ten year suspended sentence, and his five years of post-release supervision.
We do not agree.
¶6.
This Court recently reviewed this issue in Brown v. State, 872 So. 2d 96 (Miss. Ct. App.
2004). In Brown, the defendant was sentenced to serve three years with seven years suspended, and
five years of post-release supervision. Brown argued that his sentence was in excess of the ten year
maximum sentence he could receive for embezzlement. This Court determined that under the
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mandate of Carter a defendant’s period of supervised release is not counted toward his time served.
Brown, 872 So. 2d at 99 (¶11) (citing Carter v. State, 754 So. 2d 1207, 1210 (Miss. 2000).
¶7.
Under Brown, Hobson’s sentence is well within the statutory maximum. This argument
lacks merit.
II.
DID HOBSON RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?
¶8.
Hobson argues that he received ineffective assistance of counsel because his attorney did not
object to his illegal sentence. As established in section I of this opinion, Hobson’s sentence was not
illegal, therefore there is no need to address this claim.
¶9.
THE JUDGMENT OF THE CIRCUIT COURT OF PONTOTOC COUNTY
DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO PONTOTOC COUNTY EXCEPT FOR $153 PAID BY THE
APPELLANT TO THE PONTOTOC COUNTY CIRCUIT CLERK’S OFFICE.
KING, C.J., BRIDGES, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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