Artis v. State, No. 92-KP-1046

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtSULLIVAN; HAWKINS
Citation643 So.2d 533
PartiesAlfonso ARTIS v. STATE of Mississippi.
Docket NumberNo. 92-KP-1046
Decision Date29 September 1994

Page 533

643 So.2d 533
Alfonso ARTIS
v.
STATE of Mississippi.
No. 92-KP-1046.
Supreme Court of Mississippi.
Sept. 29, 1994.

Page 534

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.

SULLIVAN, Justice, for the Court:

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

Page 535

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:

BY THE COURT: And I'll accept the recommendation and in Cause No. T-354, I sentence you to a term of twenty-five years in the custody of the Mississippi Department of Corrections, twenty years suspended on five years supervised probation. Was there any discussion of probation?

BY MR. FRAISER: No, Your Honor.

BY THE COURT: Okay. Strike that probation then. Twenty-five years in the custody of the Mississippi Department of Corrections with fifteen (sic) years suspended and five years to serve and in Cause No. S-991, I sentence you to a term of twenty years in the custody of the Mississippi Department of Corrections, with fifteen years suspended and five years to serve and each sentence to run concurrent with the other.

(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

Page 536

must have been other facts brought out at the hearing supporting the trial judge's denial of the Motion to Dismiss Revocation...

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22 practice notes
  • Smith v. State, No. 93-DP-00821-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1998
    ...be found in the court papers. Therefore, if such an order was entered, Jerome has failed to make a complete record. See Artis v. State, 643 So.2d 533, 535 (Miss.1994); Peterson v. State, 518 So.2d 632, 638 (Miss. 1987). And, third, apparently even if an ex parte order was entered, no eviden......
  • Kolberg v. State, No. 93-DP-00825-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • December 8, 1997
    ...473 So.2d 452, 457 (Miss.1985); Dorrough v. State, 437 So.2d 35, 37 (Miss.1983). Doby, 557 So.2d at 536 n. 2. See also Artis v. State, 643 So.2d 533, 535 (Miss.1994); Branch v. State, 347 So.2d 957, 958 (Miss.1977). Kolberg clearly failed to present a sufficient record from which this Court......
  • Johnson v. State, No. 98-CP-00663-COA.
    • United States
    • Court of Appeals of Mississippi
    • November 16, 1999
    ...what portion should be suspended then impose a probationary period." Wilson v. State, 735 So.2d 290(¶ 4)(Miss.1999); Artis v. State, 643 So.2d 533 (Miss.1994). In the case sub judice, no probationary period was ever set for the five year suspended sentence. However, as stated in the Wilson ......
  • Pitts v. State, No. 96-KA-00954-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 16, 1998
    ...Court as "lawful orders" of that court. There is a presumption that orders and judgments of the lower courts are correct. Artis v. State, 643 So.2d 533, 535 (Miss.1994); Clark v. State, 503 So.2d 277, 280 (Miss.1987). See also Walker v. Jones County Community Hosp., 253 So.2d 385, 385(Miss.......
  • Request a trial to view additional results
22 cases
  • Smith v. State, No. 93-DP-00821-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1998
    ...be found in the court papers. Therefore, if such an order was entered, Jerome has failed to make a complete record. See Artis v. State, 643 So.2d 533, 535 (Miss.1994); Peterson v. State, 518 So.2d 632, 638 (Miss. 1987). And, third, apparently even if an ex parte order was entered, no eviden......
  • Kolberg v. State, No. 93-DP-00825-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • December 8, 1997
    ...473 So.2d 452, 457 (Miss.1985); Dorrough v. State, 437 So.2d 35, 37 (Miss.1983). Doby, 557 So.2d at 536 n. 2. See also Artis v. State, 643 So.2d 533, 535 (Miss.1994); Branch v. State, 347 So.2d 957, 958 (Miss.1977). Kolberg clearly failed to present a sufficient record from which this Court......
  • Johnson v. State, No. 98-CP-00663-COA.
    • United States
    • Court of Appeals of Mississippi
    • November 16, 1999
    ...what portion should be suspended then impose a probationary period." Wilson v. State, 735 So.2d 290(¶ 4)(Miss.1999); Artis v. State, 643 So.2d 533 (Miss.1994). In the case sub judice, no probationary period was ever set for the five year suspended sentence. However, as stated in the Wilson ......
  • Pitts v. State, No. 96-KA-00954-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 16, 1998
    ...Court as "lawful orders" of that court. There is a presumption that orders and judgments of the lower courts are correct. Artis v. State, 643 So.2d 533, 535 (Miss.1994); Clark v. State, 503 So.2d 277, 280 (Miss.1987). See also Walker v. Jones County Community Hosp., 253 So.2d 385, 385(Miss.......
  • Request a trial to view additional results

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