Doug M. Carroll v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KP-01406-COA
DOUG M. CARROLL
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
6/21/2006
HON. ANDREW K. HOWORTH
UNION COUNTY CIRCUIT COURT
DOUG M. CARROLL (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CRIMINAL - FELONY
CONVICTED OF ARMED ROBBERY AND
SENTENCED TO FORTY-FIVE YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, THIRTYFIVE YEARS TO SERVE AND TEN YEARS
SUSPENDED, AND FIVE YEARS OF POSTRELEASE SUPERVISION
AFFIRMED - 8/5/2008
BEFORE MYERS, P.J., CHANDLER AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
Doug M. Carroll appeals the Circuit Court of Union County’s denial of his motion to dismiss
the indictment against him for violation of his right to a speedy trial. Finding no error, we affirm
the judgment of the circuit court.
FACTS AND PROCEDURAL HISTORY
¶2.
On October 13, 2005, Carroll was indicted by a Union County grand jury for robbery with
a deadly weapon pursuant to Mississippi Code Annotated section 97-3-79 (Rev. 2006). On April
20, 2006, Carroll filed a motion to dismiss the indictment for violation of his right to a speedy trial.
The circuit court denied the motion on June 19, 2006. Subsequently, on June 20, 2006, in the midst
of his jury trial, Carroll pleaded guilty to one count of robbery with a deadly weapon. On June 21,
2006, Carroll was sentenced to forty-five years in the custody of the Mississippi Department of
Corrections (MDOC), with ten years suspended and five years’ post-release supervision.
¶3.
On September 6, 2006, Carroll’s notice of appeal was received and filed in the Mississippi
Supreme Court. The cover letter and the certificate of service, however, were both dated June 25,
2006. On appeal, Carroll asserts the following grounds of error: (1) the sentence imposed by the
circuit court was illegal in light of the fact that he was a prior convicted felon and therefore was
ineligible for a suspended sentence pursuant to Mississippi Code Annotated section 47-7-33; and
(2) the circuit court erred in denying his motion to dismiss the indictment for violation of his right
to a speedy trial. The State contends that this Court lacks jurisdiction to hear Carroll’s appeal on
two grounds: (1) Carroll’s appeal was untimely, and (2) Carroll pleaded guilty and thus has no right
to appeal his conviction and sentence. Finding proper jurisdiction and no error, we affirm.
ANALYSIS
I. Whether this Court lacks jurisdiction on the ground that Carroll’s appeal was
untimely.
¶4.
The State argues that this Court lacks jurisdiction to hear Carroll’s appeal because it was
untimely filed. Mississippi Rule of Appellate Procedure 4(a) mandates that the “notice of appeal
. . . shall be filed with the clerk of the trial court within 30 days after the date of entry of the
judgment or order appealed from.” “An appeal which is ‘not timely filed pursuant to Rule 4 or 5’
shall be mandatorily dismissed.” Minchew v. State, 967 So. 2d 1244, 1246 (¶4) (Miss. Ct. App.
2007) (quoting M.R.A.P. (2)(a)(1)).
¶5.
“When challenging an appeal as untimely, the State bears the burden of proving that, under
2
the terms of the prison mailbox rule, the prisoner’s notice of appeal was not ‘filed’ within the
thirty-day window of Rule 4.” Id. at 1246-47 (¶4) (citing Sykes v. State, 757 So. 2d 997, 1000-01
(¶14) (Miss. 2000)); Vance v. State, 941 So. 2d 225, 227 (¶5) (Miss. Ct. App. 2006) (citation
omitted)). “Under the prison mailbox rule, a pro se prisoner’s notice of appeal is effectively ‘filed’
under Rule 4 when the prisoner delivers his notice of appeal to the proper prison authorities for
mailing.” Id. (citing Sykes, 757 So. 2d at 1000-01 (¶14)).
¶6.
In this case, Carroll’s notice of appeal indicates that the judgment from which he appeals is
the circuit court’s June 19, 2006, denial of his motion to dismiss the indictment for violation of his
right to a speedy trial. Therefore, Carroll was required to file his notice of appeal within thirty days
after June 19, 2006. The record indicates that Carroll’s notice of appeal was received and filed by
the circuit court on September 6, 2006, clearly more than thirty days from the date of the judgment
denying Carroll’s motion to dismiss the indictment. The cover letter and certificate of service
attached to the notice of appeal, however, are dated June 25, 2006, which is within thirty days of
June 19, 2006. While we have no way of knowing when Carroll actually delivered his appeal
documents to prison authorities for mailing, the State has offered no evidence indicating that Carroll
failed to do so within the thirty-day window provided in Rule 4(a). Accordingly, as the State has
failed to meet its burden of proving that Carroll’s notice of appeal was untimely filed, we find that
we are not deprived of jurisdiction to hear this appeal on such ground.
II. Whether this Court lacks jurisdiction to hear Carroll’s appeal on the ground that
Carroll’s guilty plea precludes him from appealing his conviction and sentence.
¶7.
The State also contends that this Court lacks jurisdiction to hear this appeal because Carroll
relinquished his right to appeal his conviction and sentence when he pleaded guilty. The State cites
Mississippi Code Annotated section 99-35-101 (Rev. 2007), which states:
Any person convicted of an offense in a circuit court may appeal to the supreme
3
court, provided, however, an appeal from the circuit court to the supreme court shall
not be allowed in any case where the defendant enters a plea of guilty.
We find the State’s argument to be without merit. The Mississippi Supreme Court has held that,
while a conviction resulting from a guilty plea may not be directly appealed, “an illegal sentence
handed down pursuant to the plea is appealable.” Jennings v. State, 896 So. 2d 374, 377 (¶16)
(Miss. Ct. App. 2004) (citing Trotter v. State, 554 So. 2d 313, 315 (Miss. 1989)).1 In this case,
Carroll argues that his suspended sentence was illegal due to the fact that he was a prior convicted
felon; therefore, this Court has jurisdiction to hear Carroll’s appeal in this regard. Accordingly, we
proceed to consider Carroll’s appeal on its merits.
III. Whether Carroll’s suspended sentence was illegal due to his status as a prior
convicted felon.
¶8.
Carroll contends that because he was a prior convicted felon at the time he was sentenced,
he was not eligible for a suspended sentence in accordance with Mississippi Code Annotated section
47-7-33 (Rev. 2004). That section states as follows:
When it appears to the satisfaction of any circuit court or county court in the State
of Mississippi, having original jurisdiction over criminal actions, or to the judge
thereof, that the ends of justice and the best interest of the public, as well as the
defendant, will be served thereby, such court, in termtime or in vacation, shall have
the power, after conviction or a plea of guilty, except in a case where a death
sentence or life imprisonment is the maximum penalty which may be imposed or
where the defendant has been convicted of a felony on a previous occasion in any
court or courts of the United States and of any state or territories thereof, to suspend
the imposition or execution of sentence, and place the defendant on probation as
herein provided, except that the court shall not suspend the execution of a sentence
of imprisonment after the defendant shall have begun to serve such sentence.
1
We note that section 99-35-101 was recently amended to state that, effective July 1, 2008,
“[a]ny person convicted of an offense in a circuit court may appeal to the Supreme Court. However,
where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court
to the Supreme Court shall be allowed.” 2008 Miss. S.B. 2100. This amendment appears to indicate
that even an illegal sentence may not be challenged on direct appeal, but rather must be challenged
by way of a petition for post-conviction relief. The amendment, however, is inapplicable to
Carroll’s appeal as it was perfected prior to the amendment’s effective date.
4
Prior to pleading guilty to armed robbery, Carroll was convicted of the felony of burglary; therefore,
he was not eligible to receive a suspended sentence. As support for his argument, Carroll relies on
Weaver v. State, 785 So. 2d 1085 (Miss. Ct. App. 2001) and Cooper v. State, 737 So. 2d 1042 (Miss.
Ct. App. 1999). In both Weaver and Cooper, this Court held in accordance with section 47-7-33 that
the respective defendants should be allowed to withdraw their guilty pleas because the suspended
sentences they received were improper inducements to plead guilty due to the fact that the
defendants, both prior convicted felons, were not eligible for suspended sentences. Weaver, 785 So.
2d at 1088 (¶12); Cooper, 737 So. 2d at 1045 (¶13).
¶9.
However, since Weaver and Cooper were decided, the Mississippi Supreme Court has held
that an individual with a prior felony conviction is eligible for a suspended sentence. In Johnson
v. State, 925 So. 2d 86 (Miss. 2006), the supreme court addressed the “ever-present sentencing
problem that occurs when a prior convicted felon is given a split sentence of incarceration followed
by MDOC supervision, whether it be classified as post-release supervision, or supervised
probation.” Id. at 91 (¶8). Johnson, who had a prior felony conviction, was convicted of the sale
of cocaine and sentenced to fifteen years’ imprisonment, with eight years suspended and five years
of post-release supervision.2 Id. at 88 (¶2). On appeal, Johnson argued that his suspended sentence
2
For the prior felony conviction Johnson was sentenced to fifteen years’ imprisonment, with
eleven years suspended and five years of post-release supervision; therefore,
[t]he practical effect of the sentence . . . imposed upon Johnson was that (1) upon
completion of the sentence Johnson was serving at the time of the imposition of the
sentence under review, Johnson would serve seven years of incarceration; (2) upon
release from MDOC custody, Johnson would serve the remaining eight years of his
fifteen-year sentence on post-release supervision pursuant to the provisions of
Miss[issippi] Code Ann[otated] [s]ection 47-7-34; (3) five years of Johnson’s
eight-year post-release supervision sentence would be served under MDOC
supervision pursuant to the terms and conditions provided by Miss[issippi] Code
Ann[otated] [s]ection 47-7-35; (4) the remaining three years of Johnson’s eight-year
post-release supervision sentence would be served as ‘non-reporting,’ meaning that
while Johnson would not be under MDOC supervision by reporting to a MDOC
5
was illegal due to the fact that he was a prior convicted felon, and this Court agreed. Id. at 89-90
(¶4). The Court, however, chose not to remand the case for re-sentencing; rather, the Court removed
the eight-year suspended sentence and replaced it with five years of post-release supervision.3 Id.
at 90 (¶6). Upon this Court’s invitation,4 the supreme court granted the State’s writ of certiorari.
probation officer, Johnson would still be required to remain on ‘good behavior,’ such
as not committing another crime, not owning, carrying, or concealing a firearm, and
not using or possessing illegal drugs; and, (5) if Johnson violated any of the terms
of his post-release supervision during this eight-year period, the court would have
authority to terminate any part of, or all of, his eight-year post-release supervision,
and sentence Johnson to serve a term of up to eight years in the custody of the
Mississippi Department of Corrections, pursuant to the provisions of Miss[issippi]
Code Ann[otated] [s]ection 47-7-34(2).
Johnson, 925 So. 2d at 89 (¶3).
In this case, the circuit judge who sentenced Carroll on the armed robbery conviction ordered
that the sentence be served consecutive to the sentence Carroll was already serving; thus, the
practical effect of Carroll’s sentence would be as follows: (1) upon the completion of the sentence
he was already serving, Carroll would serve thirty-five years of incarceration; (2) upon release from
the custody of the MDOC, Carroll would serve the remaining ten years of his forty-five-year
sentence on post-release supervision pursuant to the provisions of Mississippi Code Annotated
section 47-7-34; (3) five years of Carroll’s ten-year post-release supervision sentence would be
served under MDOC supervision pursuant to the terms and conditions provided by Mississippi Code
Annotated section 47-7-35; (4) the remaining five years of Carroll’s ten-year post-release
supervision sentence would be served as ‘non-reporting,’ meaning that while Carroll would not be
under MDOC supervision by reporting to a MDOC probation officer, he would still be required to
remain on ‘good behavior’; and (5) if Carroll violated any of the terms of his post-release
supervision during this ten-year period, the court would have authority to terminate any part of, or
all of, his ten-year post-release supervision, and sentence him to serve a term of up to ten years in
the custody of the Mississippi Department of Corrections pursuant to the provisions of Mississippi
Code Annotated section 47-7-34(2).
3
The Court reasoned that there was “no practical difference between what the trial judge did
and what he should have done, which would have been to sentence Johnson to a seven year term of
incarceration and a five year term of post-release supervision.” Id. at 90 (¶5).
4
After noting that recent supreme court decisions had indicated that there might be two ways
to serve post-release supervision, one being five years under the supervision of the MDOC and the
other being “unsupervised post-release supervision,” and the possibility that post-release supervision
may be permitted for a longer period “so long as the total of the term to serve, the term of supervised
supervision, and the term of unsupervised supervision does not exceed the maximum sentence for
the offense,” the Court stated that “[l]ater decisions are needed to make the interpretation of post-
6
Id. The supreme court found that Johnson’s original sentence was legal; therefore, this Court erred
in modifying the sentence. In so holding, the supreme court first noted that “suspending a sentence
and granting probation are not interchangeable mechanisms.” Id. at 93 (¶12). The supreme court
then discussed two cases that played a particularly crucial role in the development of Mississippi’s
law as it pertains to suspended sentences for prior convicted felons, the first of which was Robinson
v. State, 585 So. 2d 757 (Miss. 1991).
¶10.
In Robinson, a defendant with a prior felony conviction was sentenced to a suspended
sentence in addition to supervised probation. Johnson, 925 So. 2d at 96 (¶20). On appeal of the
circuit court’s denial of Robinson’s motion for post-conviction relief, the supreme court held that
section 47-7-33 does not allow a convicted felon “to receive ‘suspension of sentence and probation,’
and that Robinson should therefore be permitted to withdraw his guilty plea and enter a new plea
. . . [or] be given the opportunity for a trial if he chose to offer a not guilty plea.” Id. at 97 (¶20).
According to the Johnson court, while the correct result was reached in Robinson, “the road . . .
traveled to get to [the] final destination was more than a little bumpy.” Id. The court noted the
following language in Robinson as precipitating the need to clarify the court’s interpretation of
section 47-7-33, stating:
Clearly, [section] 47-7-33 does not permit suspension of sentence and
probation to a defendant with a prior felony conviction. Robinson’s suspended
sentence and probation was without authority and, therefore, invalid. Because
Robinson plead guilty on the improper inducement that he was eligible for a
suspended sentence or probation, he is therefore permitted to withdraw his guilty
plea and he must be allowed to enter a new plea and offered the opportunity of a new
trial. Accordingly, we reverse the judgment below and restore Robinson’s plea of
not guilty to the indictment for possession of more than one ounce and less than one
kilogram of marijuana and remand for such further appropriate proceedings.
Id. (quoting Robinson, 585 So. 2d at 759) (internal citation omitted).
release supervision more certain.” Johnson, 925 So. 2d at 90 (¶5) (quoting Johnson v. State, 924
So. 2d 527, 530 (¶10) (Miss. Ct. App. 2004)).
7
¶11.
The Johnson court then discussed Goss v. State, 721 So. 2d 144 (Miss. 1998), which it stated
“galvanized” the Robinson holding and was “responsible for perpetuating the interpretation accorded
to section 47-7-33.” Id. at (¶21). In Johnson, the supreme court quoted from Goss, which relied on
Robinson, as follows:
In Robinson, we held the trial court suspended the defendant's sentence in
violation of [section] 47-7-33 due to the defendant’s prior felony conviction. The
uncertainty in the instant case stems from the distinguishable fact that only part of
Goss’s sentence was suspended by the lower court rather than the entire sentence as
in Robinson. We find that the wording of the statute not only restricts the courts’
ability to place defendants with prior felony convictions on probation, but it also
restricts their ability to wholly or partially suspend the sentence of a previously
convicted felon. Therefore, the lower court erred in sentencing Goss, a convicted
felon, to serve seven years in the state penitentiary followed by a conditional three
year suspended sentence. Goss is simply not entitled to a suspended sentence in light
of his prior conviction.
Johnson, 925 So. 2d at 98-99 (¶22) (quoting Goss, 721 So. 2d at 146 (¶12)). According to the
Johnson court, the Goss court misinterpreted Robinson and section 47-7-33 as follows:
The unquestionable flaw in Goss is that it expanded the limiting language of
[s]ection 47-7-33, which applies to convicted felons, by replacing the specific
language provided for by the Probation Act, which specifically limits a judges'
ability to suspend a sentence and place a convicted felon on probation, with language
that prevents judges from placing a convicted felon on probation or suspending the
sentence. This new interpretation in Goss changed the landscape of sentencing under
[s]ection 47-7-33 by prohibiting trial judges not only from imposing supervised
probation on a convicted felon, but also from suspending a convicted felon's
sentence, in whole or in part. We now find that Goss’s interpretation of this statute
was error. If the legislature had intended for the prior felony exception to apply to
both instances where a judge is considering imposition of a ‘straight’ suspended
sentence versus supervised probation, the legislature would have used the disjunctive
‘or’ to assure that the prior felony exception applied in both sentencing situations.
Importantly, the legislature opted for the conjunctive “and”, as opposed to “or”,
which evidences the legislature’s intent that the prior convicted felon exception
apply only when the sentencing judge seeks to suspend the imposition or execution
of a sentence “and” place the defendant on probation under MDOC supervision.
Id. at 99 (¶23). The court stated that the holding in Goss “treated suspended sentences and probation
as interchangeable sentencing mechanisms born of the same legislative act” when, in fact,
8
“suspending a sentence and imposing probation are distinct events.” Id. at (¶24).
¶12.
The Johnson court found that by enacting Mississippi Code Annotated section 47-7-34,
which created the Post-Release Supervision Program, the Legislature “return[ed] sentencing
discretion back to our trial judges” and “provid[ed] [the supreme court] with the statutory impetus
to uphold substantively proper sentencing, which might otherwise have been struck down as ‘illegal’
under Miss[issippi] Code Ann[otated] [s]ection 47-7-33(1).” Id. at 99-100 (¶¶24-25). The court
then summarized its holding as follows:
For purposes of clarity, consistency and cohesion, we hold today that the
circuit and county courts of this state have the power to suspend, in whole or in part,
a convicted felon's sentence under Miss[issippi] Code Ann[otated] section 47-7-33
inasmuch as this Court and the legislature have empowered them to do so under
Miss[issippi] Code Ann[otated] section 47-7-34, and to the extent that the practice
has been historically ingrained in our criminal courts’ sentencing practice. In this
way, the appellate courts of this state should liberally read the Probation Act, as
codified in 1956, along with the Post-Release Supervision Program, as codified in
1995, with an eye on the intentions of the trial courts, recognizing the trial courts’
ability to monitor or supervise prior convicted felons beyond the five-year maximum
period statutorily assigned to the MDOC.
....
Today, we return the legislatively intended sentencing discretion to our trial
courts by clarifying that (1) Miss[issippi] Code Ann[otated] section 47-7-33 prohibits
the imposition of a suspended sentence and supervised probation on a prior
convicted felon; however, this statute does not prohibit the imposition of a suspended
sentence, in whole or in part, upon a prior convicted felon, so long as the sentence
does not involve a period of supervised probation and does not exceed the maximum
penalty statutorily prescribed for the felony offense committed; (2) when a suspended
sentence and supervised probation are properly imposed upon a first-offender under
the provisions of [s]ection 47-7-33, the period of supervision by the Mississippi
Department of Corrections is limited to a maximum period of five years; (3)
Miss[issippi] Code Ann[otated] section 47-7-34 does not prohibit the imposition of
post release supervision upon a prior convicted felon, nor does this statute limit the
period of post-release supervision to a period of five years; but instead, the period
of post release supervision is limited only to the number of years, which when added
to the total period of incarceration, would not exceed the maximum penalty
statutorily prescribed for the felony offense committed; and, (4) importantly, the
statutory limitation of five years applies only to that maximum period of post-release
supervision which may be served under the supervision of the Mississippi
9
Department of Corrections. To the extent that our decision in Goss v. State, 721 So.
2d 144 (Miss. 1998), is in conflict with today's decision, Goss is expressly overruled.
Johnson, 925 So. 2d at 103, 105 (¶¶32, 39).
¶13.
We now turn to the facts of the case before us. Carroll, a prior convicted felon, was
sentenced to forty-five years in the custody of the MDOC, with ten years suspended and five years
of post-release supervision. In ordering that Carroll serve five years of post-release supervision, the
circuit court specifically invoked section 47-7-34. Thus, in accordance with Johnson, Carroll’s prior
felony conviction did not prevent him from receiving a suspended sentence. Moreover, Carroll’s
sentence, including the period of post-release supervision, did not exceed the maximum penalty
statutorily prescribed for the felony offense committed. Pursuant to Mississippi Code Annotated
section 97-3-79 (Rev. 2006), in the event that a defendant is sentenced by the judge, the penalty shall
be “imprisonment in the state penitentiary for any term not less than three (3) years” but less than
a life sentence. See State v. Hayes, 887 So. 2d 184, 187 (¶11) (Miss. Ct. App. 2004) (“Section
97-3-79 does not provide for a maximum sentence of life for armed robbery when the sentence is
imposed by a judge rather than a jury.”). Thus, Carroll’s sentence of forty-five years, with ten years
suspended and five years of post-release supervision, is clearly within the statutory guideline range.
Accordingly, Carroll’s argument that his sentence is illegal is without merit.5
IV. Whether Carroll was denied his right to a speedy trial.
¶14.
Carroll contends that he was denied both his constitutional and statutory right to a speedy
trial. However, it is well settled that a valid “guilty plea waives the right to a speedy trial, whether
that right is of constitutional or statutory origin.” Rowe v. State, 735 So. 2d 399, 400 (¶3) (Miss.
5
We note that while Weaver and Cooper were not expressly overruled by Johnson, both
cases cited Robinson and Goss as support for their conclusion. Weaver, 785 So. 2d at 1087-88 (¶9);
Cooper, 737 So. 2d at 1045 (¶11). As was discussed above, Johnson expressly overruled Goss and
held that Robinson is not to be interpreted as preventing a prior convicted felon from receiving a
suspended sentence.
10
1999) (citing Anderson v. State, 577 So. 2d 390, 391-92 (Miss. 1991)). In this case, Carroll does
not challenge the validity of his guilty plea, and the record indicates that the guilty plea was
voluntary. Accordingly, as Carroll waived his right a speedy trial when he pleaded guilty, this issue
is without merit.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY OF
CONVICTION OF ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF FORTYFIVE YEARS, WITH THIRTY-FIVE YEARS TO SERVE AND TEN YEARS SUSPENDED,
AND FIVE YEARS OF POST-RELEASE SUPERVISION, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO UNION COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE AND
CARLTON, JJ., CONCUR. IRVING AND ROBERTS, JJ., CONCUR IN RESULT ONLY.
11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.