Carl James Caviness v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01553-COA
CARL JAMES CAVINESS
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
05/30/2007
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
CARL JAMES CAVINESS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED: 09/16/2008
BEFORE KING, C.J., BARNES AND ISHEE, JJ.
KING, C.J., FOR THE COURT:
¶1.
Carl James Caviness appeals the Harrison County Circuit Court’s denial of his motion for
post-conviction relief. Finding no error, we affirm.
FACTS
¶2.
Caviness was indicted in three separate indictments. Together, the indictments charged him
with two counts of robbery and two counts of armed robbery. On February 15, 1999, Caviness
pleaded guilty to the two counts of robbery, a count of robbery reduced from armed robbery, and
a count of armed robbery.
¶3.
The circuit court accepted Caviness’s guilty plea and sentenced him to ten years in the
custody of the Mississippi Department of Corrections on each of the three robbery counts. Those
three counts were ordered to run concurrently. The circuit court sentenced him to an additional ten
years on the armed robbery count, with its sentence to run consecutive to the sentences in the
robbery counts. The circuit court then suspended thirteen of the total twenty years Caviness was
ordered to serve. After Caviness had served seven years of imprisonment, he was ordered to serve
three years of post-release supervision. All four convictions and sentences were contained in one
judgment of conviction.
¶4.
Caviness served the appropriate portion of his sentence and was released on the three years
of post-release supervision. Shortly after his release, Caviness confessed that he had violated the
terms of his post-release supervision. On August 12, 2005, the circuit court entered an order
revoking the suspended portion of Caviness’s February 15, 1999, sentence.
¶5.
On April 9, 2007, Caviness filed a motion which requested the circuit court to correct an
illegal sentence. The trial court treated Caviness’s motion as a motion for post-conviction relief,
which the court denied without an evidentiary hearing. In its order, the circuit court stated, “There
is nothing illegal about the sentence he received.”
¶6.
Aggrieved, Caviness appeals the circuit court’s summary denial of his motion.
ANALYSIS
¶7.
Essentially, Caviness makes two allegations of error upon appeal: (1) his sentence was in
violation of Mississippi law, and (2) his sentence was contrary to the sentence announced in open
court.
¶8.
Prior to addressing Caviness’s allegations, we must first address the State’s allegation that
Caviness’s motion for post-conviction relief was time-barred. Mississippi Code Annotated section
99-39-5(2) (Rev. 2007) provides that a motion for post-conviction relief shall be made within three
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years after the entry of the judgment of conviction. Since Caviness filed his motion for postconviction relief over eight years after the circuit court’s entry of conviction, it would appear that
the motion is time-barred. However, the statute provides for certain exceptions to the time bar such
as:
when the supreme court of this state or of the United States has handed down a
decision that would have changed the outcome of the case, when new and nearly
conclusive exculpatory evidence is presented that had not been reasonably
discoverable at the time of trial, or when the argument is that the sentence has
expired or that probation or parole has been improperly revoked.
Watts v. State, 840 So. 2d 754, 755 (¶4) (Miss. Ct. App. 2003) (emphasis added); see also Miss.
Code Ann. § 99-39-5(2). While Caviness’s probation was revoked less than two years prior to the
filing of his motion for post-conviction relief, all of his arguments attack the original sentence, not
the actual revocation of probation. Therefore, he does not fall within the statutory exception
provided by section 99-39-5(2).
¶9.
However, one exception still exists. A claim that the defendant is serving an illegal sentence
is not subject to the time bar “because errors affecting a fundamental constitutional right are
excepted from the time bar.” Miller v. State, 879 So. 2d 1050, 1051 (¶4) (Miss. Ct. App. 2004)
(citing Ivy v. State, 731 So. 2d 601, 602 (¶4) (Miss. 1999)). Therefore, we will address the first of
Caviness’s allegations of error because it alleges that the sentence is illegal. The final allegation of
error does not make a claim affecting a fundamental constitutional right. Therefore, it is not
excepted by the three-year time bar provided in section 99-39-5(2) and is therefore procedurally
barred. We now turn to the allegation that survives the procedural bar.
¶10.
Caviness alleges that the sentence he received was in contravention of Mississippi Code
Annotated section 99-19-21(1) (Rev. 2007). Section 99-19-21(1) provides that:
When a person is sentenced to imprisonment on two (2) or more convictions, the
imprisonment on the second, or each subsequent conviction shall, in the discretion
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of the court, commence either at the termination of the imprisonment for the
preceding conviction or run concurrently with the preceding conviction.
¶11.
Caviness argues that the circuit court violated section 99-19-21(1) when it combined the
robbery sentences with the consecutive armed robbery sentence to create one twenty-year sentence.
Caviness admits that the sentencing order does not specifically combine the sentences, but he
suggests that the combination can be found in the essence of the sentencing order. He alleges the
circuit court combined the sentences when it stated that thirteen years of imprisonment were
suspended.
¶12.
However, the circuit court did not order Caviness to serve a sentence in violation of section
99-19-21(1). The order sentenced Caviness to three ten-year sentences to run concurrent with each
other on the three simple robbery convictions. The circuit court then sentenced Caviness to ten
years of imprisonment on the armed robbery conviction; however, the armed robbery conviction was
ordered to run consecutive to the three simple robbery convictions. The circuit court then suspended
three years of the simple robbery sentences and all ten years of the armed robbery sentence.
Mississippi Code Annotated section 47-7-33 (Rev. 2004) provides the circuit court with the
authority to suspend Caviness’s sentences in such a manner. In addition, section 99-19-21(1) allows
the circuit court to require that the sentences be served concurrently or consecutively. Therefore,
the circuit court was correct when it stated that there was nothing illegal in the sentence that
Caviness received, and this allegation of error is without merit.
¶13.
Caviness also claims that his sentence was ambiguous as to which portion of the suspended
sentence was contingent upon successful completion of the three years of post-release supervision.
He argues that the conditions should only be applied to the suspended portion of the robbery
sentence. However, the sentencing order is clear. It states that “the suspension of said sentence is
based upon the following conditions . . .” The only suspension mentioned in the entire order is the
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thirteen years spread among the robbery and armed robbery sentences. Therefore, it is clear that the
entire suspended sentence was subject to the conditions. Therefore, this allegation of error is also
without merit.
¶14.
Since the only issue that overcomes the time bar is without merit, the judgment of the circuit
court is affirmed.
¶15. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO HARRISON COUNTY.
LEE AND MYERS, P.JJ., IRVING , CHANDLER, GRIFFIS, BARNES, ISHEE AND
CARLTON, JJ., CONCUR. ROBERTS, J., SPECIALLY CONCURS WITH SEPARATE
WRITTEN OPINION.
ROBERTS, J., SPECIALLY CONCURRING:
¶16.
While I agree with the majority’s reasoning and resolution of the issues in this case, I write
separately in an attempt to persuade those on the trial bench to be more deliberate and exact when
drafting sentencing orders of their court. As stated by the majority, Caviness was charged with two
counts of robbery and two counts of armed robbery over three separate indictments. He ultimately
pled guilty to three counts of simple robbery and one count of armed robbery, and the sentences he
received for all four charges were contained in one sentencing order. Specifically, Caviness was
sentenced to ten years on each robbery conviction and ten years on the armed robbery conviction.
The order specified that the three ten-year sentences for robbery were to be served concurrently to
one another and consecutive to the ten-year sentence for armed robbery. Further, the trial court
suspended thirteen years leaving seven to serve. Finally, the trial court ordered Caviness to serve
three years of post-release supervision (PRS) upon discharge from his initial seven-year term of
imprisonment.
¶17.
The familiar adage, “bad facts make bad law,” can be equally applied to the review of
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unclear sentencing orders from a court. Rule 7.07 of the Uniform Rules of Circuit and County Court
requires that a trial court impose separate sentences upon a defendant for each conviction stemming
from a multi-count indictment. URCCC 7.07(D).1 At least one reason for this is to avoid confusion
and ambiguity surrounding obligations of imprisonment and supervision that convicted defendants
receive – the effects of which can plague the defendant and the legal system for years to come.
¶18.
One example of the confusion that can occur soon after the defendant receives the sentence
is when the Mississippi Department of Corrections (MDOC) is required to decipher the trial court’s
order. Using the sentence in the instant case as an example, because all four sentences were lumped
into one order, it is not completely clear which ten-year sentence was totally suspended – the three
concurrent sentences for robbery or the sentence for armed robbery. The import of the distinction
in this case is that the ten-year sentence for armed robbery prohibits parole eligibility, earned time,
and other administrative reductions. See Miss. Code Ann. §§ 47-7-3(1)(d)(I) (Rev. 2004); 47-5139(1)(e) (Rev. 2004). Thus, officials at the MDOC must decide which sentence is suspended,
which sentence to apply credit to for time served in accordance with Mississippi Code Annotated
section 99-19-23 (Rev. 2007) and, by extension, ultimately decide which sentence Caviness would
serve if he violated the conditions of his PRS.
¶19.
Another example could occur later in the life of a defendant’s sentence when the defendant
files a motion for post-conviction collateral relief (PCR) pursuant to Mississippi Code Annotated
sections 99-39-1 to -29 (Rev. 2007). Section 99-39-9(2) states that a defendant’s motion for PCR
may only seek relief from one judgment. While the instant case involves only one sentencing order,
it contains four separate sentences based upon four separate guilty pleas. Such a situation could
have easily led to a motion for PCR containing issues surrounding the voluntariness of each plea and
1
One of Caviness’s indictments was multi-count.
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legality of each sentence. Depending on the specific facts of a similarly situated case, and the
interpretation afforded to them, a motion for PCR involving all pleas and sentences could be deemed
a violation of section 99-39-9(2) and dismissed. Thus, such a determination could potentially strip
a defendant of his final right of redress.
¶20.
As I stated above, my intention in writing separately is to remind trial judges of the lasting
effect of their sentencing orders and of the necessity to “get it right” the first time. Because the
record in this case is adequate for me to conclude that Caviness’s sentencing order was correctly
interpreted by the MDOC as three concurrent ten-year sentences for simple robbery, with three years
suspended, and one consecutive ten-year sentence for armed robbery, with the entirety of the
sentence suspended, I concur with the majority. Obviously, continued suspension of the simple
robbery sentences, as well as the consecutive armed robbery sentence, were contingent on
Caviness’s obedience to the conditions of his PRS. Regrettably for Caviness, he was unable or
unwilling to obey those conditions. With the assistance of counsel, he admitted such before the trial
judge.
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