Joseph L. Branch v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01796-COA
JOSEPH L. BRANCH
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
9/5/2007
HON. ISADORE W. PATRICK, JR.
WARREN COUNTY CIRCUIT COURT
JOSEPH L. BRANCH (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
REVERSED AND REMANDED - 12/16/2008
EN BANC.
BARNES, J., FOR THE COURT:
¶1.
Joseph L. Branch appeals the Warren County Circuit Court’s dismissal of his motion
for post-conviction relief. Finding error, we reverse and remand for entry of a revised
sentencing order in accordance with this opinion.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
Branch pleaded guilty to the sale of cocaine and was sentenced to six years’
imprisonment, with four years to be served in the custody of the Mississippi Department of
Corrections (MDOC) and two years suspended. He was also sentenced to five years of postrelease supervision. After serving four years, Branch was released; however, his suspended
sentence was later revoked by way of an agreed order dated October 6, 2006, between
Branch and the State, and Branch was sentenced to six years in the custody of the MDOC,
“with credit given for time served.”
¶3.
Branch subsequently filed a motion for post-conviction relief in the Warren County
Circuit Court alleging that the term of imprisonment imposed in the agreed order of
revocation amounted to a second punishment for the same offense because he had already
served four years of his original sentence. The circuit court summarily dismissed Branch’s
motion for post-conviction relief. Aggrieved, Branch appeals, arguing that the circuit court
erred in dismissing his motion for post-conviction relief without an evidentiary hearing.
STANDARD OF REVIEW
¶4.
A trial court’s dismissal of a motion for post-conviction relief will be disturbed only
where that court’s decision was clearly erroneous. Williams v. State, 872 So. 2d 711, 712
(¶2) (Miss. Ct. App. 2004). However, the appropriate standard for reviewing questions of
law is de novo. Rice v. State, 910 So. 2d 1163, 1164-65 (¶4) (Miss. Ct. App. 2005) (citing
Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).
DISCUSSION
¶5.
Branch contends that the circuit court erred in dismissing his motion for post-
conviction relief without affording him an evidentiary hearing. Mississippi Code Annotated
section 99-39-11(2) (Rev. 2007) states that “[i]f it plainly appears from the face of the
motion, any annexed exhibits and the prior proceedings in the case that the movant is not
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entitled to any relief, the judge may make an order for its dismissal[.]” In revoking Branch’s
sentence, the circuit court ordered Branch to serve “[s]ix (6) years in the Mississippi
Department of Corrections, with credit given for time served.” Branch’s motion for postconviction relief alleged that the circuit court’s sentencing him to six years following the
revocation of his suspended sentence amounted to a second punishment for the same offense
as he had already served four years of his original six-year sentence. However, the State
argues that Branch is not entitled to relief, and that it was up to the MDOC to determine
Branch’s time served. Therefore, if there were error in the computation of his sentence, he
is only entitled to an administrative remedy.
¶6.
Upon our review of the record, we find merit to Branch’s allegation that the circuit
court erred in summarily dismissing his motion as it is clear that Branch is entitled to relief.
Branch’s original sentence was for a total of six years. Two years of that sentence were
suspended upon the requirement that Branch comply with the conditions of post-release
supervision for five years. He effectively entered the custody of the MDOC to begin serving
his four-year sentence on June 14, 2000. After serving a period of incarceration, he was
released by the MDOC on May 27, 2003, on earned-release supervision, having received
earned time or similar credit on his sentence. See Miss. Code Ann. § 47-5-138 (Rev. 2004).
Although Branch only spent 1,077 days in prison on his four-year sentence,1 because of his
earned-release time, he was released from prison as having fulfilled the four-year term of
imprisonment set out in his initial sentence. In addition, although the MDOC time sheet in
the record reflects only 1,077 days served, it also notes that Branch is to receive credit for
1
Branch was released December 17, 2002, on earned-release supervision.
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July 14, 2000, through May 27, 2003. Branch also attached in his brief a copy of his
discharge certificate from the MDOC dated May 27, 2003, which reflected that he had served
his four-year sentence.2
¶7.
When Branch’s sentence was subsequently revoked, the circuit court sentenced him
to six years with credit for time served. The MDOC time sheet interpreted this revocation
order and the six-year sentence the only way it could; that is, Branch was sentenced to six
years’ imprisonment with 1,077 days, or almost three years, credit. Subsequent to the
revocation of his suspended sentence, the effective date of Branch’s imprisonment began on
September 25, 2006. Assuming that he served the entirety of the circuit court’s sentence,
Branch would not be released until October 12, 2009 – a term of imprisonment in excess of
three years.
¶8.
Thus, we find that the sentence that the circuit court imposed when it revoked
Branch’s suspended sentence violated his constitutional protections against double jeopardy.
The circuit court was well within its discretion in revoking Branch’s suspended sentence.
See Miss. Code Ann. § 47-7-37 (Rev. 2004) (stating that upon violation of the conditions of
probation or a suspended sentence “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
2
Branch’s discharge certificate was included with his brief but not included as part
of the record to the circuit court. As the discharge certificate merely confirms Branch’s
assertions in his motion for post-conviction relief, we take judicial notice of the information
contained therein.
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or may impose any part of the sentence which might have been imposed at the time of
conviction.”) (emphasis added). Section 47-7-37 has been interpreted as follows:
We find pursuant to the foregoing Code sections that the normal course of
procedure, when the court exercises its authority to suspend the execution of
a portion of a defendant's sentence, is as follows: (1) impose a sentence; (2)
determine what portion is to be suspended; (3) impose a period of probation
(up to five years); and, (4) specify the terms and conditions upon which the
probation/suspended sentence is contingent. Then, any time during the period
of probation (i.e., within five years from the end of the time served portion of
the sentence), if upon hearing it is determined that the probationer violated any
of the specified conditions of his probation, the court has the authority to
revoke any part or all of the probation or any part or all of the suspended
sentence, as if the decision to suspend the sentence and place the defendant on
probation had never been made.
Artis v. State, 643 So. 2d 533, 537 (Miss. 1994). Therefore, the trial court’s error stemmed
from the fact that it revoked Branch’s suspended sentence but sentenced Branch to more
years of incarceration than it initially suspended, a practice that we have deemed a violation
of a defendant’s protections against double jeopardy. Specifically, this Court has stated that
“if a guilty plea has been accepted and a suspended sentence has been imposed, the court
cannot later impose a period of incarceration exceeding the original suspended sentence . .
. . To do so would expose the defendant to double jeopardy.” Ethridge v. State, 800 So. 2d
1221, 1224 (¶11) (Miss. Ct. App. 2001) (quoting Johnson v. State 753 So. 2d 449, 455 (¶15)
Miss. Ct. App. 1999)) (emphasis added). As is evident from the record, the trial court
suspended two years of Branch’s original sentence. However, the practical effect of the trial
court’s revocation sentence was an additional three-year term of imprisonment even with
credit for time served. Therefore, the sentence is patently illegal, and the circuit court’s order
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unconstitutionally subjects Branch to a period of incarceration exceeding his original
sentence.
¶9.
Accordingly, we find that the circuit court erred in its dismissal of Branch’s motion
for post-conviction relief. It follows that this Court must reverse the trial court’s dismissal
of Branch’s motion for post-conviction relief and remand this case for re-sentencing Branch
to no more than two years, the same being the maximum sentence subject to revocation for
Branch’s failure to obey the conditions of his post-release supervision.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED
AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN
COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE AND ROBERTS, JJ.,
CONCUR.
IRVING AND CARLTON, JJ., CONCUR IN RESULT ONLY.
CHANDLER, J., NOT PARTICIPATING.
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