David Simmons v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-00673-COA
DAVID SIMMONS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
3/11/2004
HON. JOSEPH H. LOPER, JR.
WINSTON COUNTY CIRCUIT COURT
DAVID SIMMONS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DOUG EVANS
CRIMINAL - POST-CONVICTION RELIEF
MOTION FOR CREDIT FOR TIME SERVED ON
PROBATION DENIED.
AFFIRMED: 05/03/2005
BEFORE BRIDGES, P.J., IRVING AND MYERS, JJ.
IRVING, J., FOR THE COURT:
¶1.
On May 1, 2001, David Simmons pleaded guilty to two counts of automobile burglary and was
sentenced to five years in the custody of the Mississippi Department of Corrections with three years
suspended. He was also placed on supervised probation for three years to commence at the conclusion
of his incarceration. Simmons violated his probation by driving while under the influence. His probation was
revoked, and he was remanded to the custody of the MDOC to serve the three years which had been
suspended.
¶2.
On March 5, 2004, Simmons filed a motion for credit for time served on probation. This motion
was denied by the Circuit Court of Winston County. Aggrieved, Simmons now appeals and asserts that
the trial court erred when it denied him credit for the time served on probation.
¶3.
We find no error in the decision reached by the trial court; therefore, we affirm its judgment.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶4.
Simmons contends that the Sentencing Reform Act of 1984 classifies probation as a sentence in
and of itself and is an alternative to incarceration. In support of this argument Simmons cites,
U.S. v. Bahe, 201 F.3d 1124 (9th Cir. 2000). However, this classification that Simmons refers to is
merely the definition of probation within a discussion about the legislative history of the Sentencing Reform
Act of 1984. It does not offer Simmons any help. Further, the Sentencing Reform Act of 1984 is a federal
act and has no application to state criminal offenses.
¶5.
Simmons next argues that he should have been given credit for the probation time served when his
sentence was reinstated. Simmons cites Kennick v. Superior Court, 736 F. 2d 1277,
1282-83 (9th Cir. 1984). A review of Kennick reveals that Simmons’s argument is misplaced.
The Kennick court held that “at least when the question before the court is whether the probationer can
be required to re-serve [sic] probation time already served, probation is punishment within the meaning of
the double jeopardy clause.” Id. at 1282. The instant case is distinguishable from Kennick. Simmons was
not required to re-serve his probation time but was required to serve the suspended sentence as result of
a violation of his probation. Therefore, there was no double jeopardy because the time that Simmons was
required to serve was custodial time and not probationary time.
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¶6.
Mississippi Code Annotated Section 47-7-37 (Rev. 2004) (emphasis added) grants circuit courts
the authority to revoke probation and provides in pertinent part:
At any time during the period of probation the court, or judge in vacation, may issue a
warrant for violating any of the conditions of probation or suspension of sentence and
cause the probationer to be arrested. . . . Thereupon, or upon an arrest by warrant as
herein provided, the court, in termtime or vacation, shall cause the probationer to be
brought before it and may continue or revoke all or any part of the probation or the
suspension of sentence, and 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 the
conviction. . . . 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.
¶7.
In essence, probation does not equal time served and cannot be credited toward a suspended
sentence. Accordingly, we hold that the trial court had the authority to impose Simmons’s suspended
sentence and that Simmons was not entitled to credit for the probation time served.
¶8.
THE JUDGMENT OF WINSTON COUNTY CIRCUIT COURT DENYING MOTION
FOR CREDIT FOR TIME SERVED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO WINSTON COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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