Artis v. State, 92-KP-1046
| Decision Date | 29 September 1994 |
| Docket Number | No. 92-KP-1046,92-KP-1046 |
| Citation | 643 So.2d 533 |
| Parties | Alfonso ARTIS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Alfonso Artis, pro se.
Michael C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.
On September 28, 1981, Alfonso Artis pled guilty to the crimes of armed robbery and manslaughter. He was sentenced to twenty five (25) years in the custody of the Mississippi Department of Corrections with twenty (20) years suspended and five (5) years to serve for the armed robbery conviction (No. T-354) and twenty (20) years in the custody of the Mississippi Department of Corrections with fifteen (15) years suspended and five (5) years to serve for the manslaughter conviction (No. S-991), sentences to run concurrently. The trial court did not subject any of the suspended portion of the sentences to a period of probation; in fact, the court expressly ruled that there would be no probation.
On July 19, 1988, Artis was found guilty in the Coahoma County Circuit Court of attempting to obtain a controlled substance by misrepresentation. Based on that conviction, a warrant was issued for Artis' arrest and, on October 24, 1988, a motion was filed to revoke his suspended sentence for the armed robbery conviction.
On March 28, 1989, Artis filed a Motion To Dismiss Revocation Proceedings, claiming that it would violate his right to due process to revoke his suspended sentence for the violation of terms and conditions which were never established at his sentencing hearing or by court order. That motion was denied on May 26, 1989. On July 5, 1989, the court denied Artis' Motion for Certification for Interlocutory Appeal. This Court dismissed Artis' Motion For Interlocutory Appeal on December 6, 1989.
The revocation proceedings were held in open court on September 8, 1989. The Order of Revocation of Suspended Sentence states that the court considered "the Petition, testimony, arguments, documents and exhibits against and in support of the revocation of said Respondent's (Artis') suspended sentence." The court then revoked the suspended sentence for three years to run consecutive to his sentence for the conviction of attempting to obtain a controlled substance by deception.
On October 18, 1991, Artis filed a Petition to Vacate and Void Revocation of Probation and Sentence, seeking post-conviction relief, arguing that the court's revocation of his suspended sentence was improper and unconstitutional because there was no probationary period established or terms and conditions imposed on the suspended sentences. The trial court denied Artis' post conviction motion on January 2, 1992. Artis filed an out of time appeal to this Court from the denial of that motion. The out of time appeal was granted by the trial judge and it presents the following issues:
1. Did the trial court err in denying Artis' petition for post conviction relief? and
2. Did the trial court err in revoking Artis' suspended sentence when there were never any terms and conditions established at his sentencing hearing?
In support of his first contention Artis cites Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), and Jackson v. Waller, 248 Miss. 166, 156 So.2d 594 (1963).
The state responds that the due process claim fails because Artis cannot overcome the presumption of correctness that attaches to the trial court's denial of his Motion to Dismiss Revocation Proceedings when Artis did not include the transcript of that hearing in the record. Clark v. State, 503 So.2d 277 (Miss.1987); Mason v. State, 440 So.2d 318 (Miss.1983); and Bolton v. State, 166 Miss. 290, 146 So. 453, 454 (1933).
The record here, however, is not silent on this issue. Although the hearing at which the trial judge denied the Motion to Dismiss Revocation Proceedings is not contained in this record, the guilty plea colloquy, the sentencing, and sentencing order, which formed the basis of this appeal, are contained in the record. At the guilty plea hearing the court heard Artis' version of the incident, and after being convinced there was a sufficient factual basis for his guilty pleas, stated:
(CONCLUSION OF TAKING OF GUILTY PLEA.) (Emphasis added).
It is clear that the trial judge expressly removed his initial imposition of probation. Further, the court did not make the suspended sentences contingent on certain terms and conditions. The sentencing order for Cause No. T-354 states nothing about probation or terms and conditions of the suspended portion of the sentences. The state, however, argues:
Since the trial court held a hearing on this issue being raised on appeal, the issue of whether the committing of a felony was a material violation of the conditions of Artis's suspended sentence would have to have been addressed. With nothing in the record as to the factual basis for the Court's Order denying him relief, Artis can not overcome the presumption of correctness which attaches to a trial court's Order.
We are uncertain what facts could have been relied on by the trial judge at the hearing other than the guilty plea, sentencing, written sentencing order, and subsequent felony conviction. The state implies that there must have been other facts brought out at the hearing supporting the trial judge's denial of the Motion to Dismiss Revocation Proceedings. However, as the State has already pointed out, we may only act on the record presented to us. Branch v. State, 347 So.2d 957, 958 (Miss.1977), and Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). It appears that it is the state and not Artis that lacks factual support in the record for its position.
As it is our view that Artis did include sufficient facts in the record to withstand the State's first argument, there remains the question of whether or not it was reversible error for the trial judge to revoke a suspended sentence for the violation of certain terms and conditions when no such terms and conditions were ever established at the sentencing hearing or in the written sentencing order.
Constitutional due process guarantees apply to the probation-revocation procedure delineated in Miss.Code Ann. Sec. 47-7-37 (1972). Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). While the Morrissey Court dealt with the revocation of parole, the Court later determined that the due process guidelines established in Morrissey apply equally to revocation of probation proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973). It should be noted that while this is not a revocation of probation case because the court did not impose probation, it stands to reason that the same due process analysis applies to revocation of suspended sentence proceedings. See Ross v. State, 594 S.W.2d at 853.
Miss.Code Ann. Sec. 47-7-33 (1972) states that circuit courts have the power, after conviction or guilty plea (Emphasis added). As previously noted, however, the court in this case expressly withdrew the imposition of probation, leaving only the partial suspension of the execution of the sentences and the five years to serve. Miss.Code Ann. Sec. 47-7-35 (1972) states:
The courts referred to in Sec. 47-7-33 shall determine the terms and conditions of probation and may, at any time during the period of probation, alter or modify the conditions and may include among them the following or any other:
That the probationer shall
(a) Commit no offense against the laws of this or any other state of the United States, or of the United States....
Miss.Code Ann. Sec. 47-7-37 (1972) states:
The period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation. Such period with any extension thereof shall not exceed five (5) years....
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 ... the court, in term time 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 conviction.
If the probationer is arrested in a circuit court district in the State of Mississippi other than that in which...
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