Brown v. State
| Decision Date | 09 November 1988 |
| Docket Number | No. 57899,57899 |
| Citation | 533 So.2d 1118 |
| Parties | Billy Gunn BROWN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
G. Jyles Eaves, Louisville, John Arthur Eaves, Jackson, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Deirdre D. McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and SULLIVAN and ZUCCARO, JJ.
STATEMENT OF THE CASE
We are called on today to interpret in a case of first impression, Sec. 99-15-26 of the Mississippi Code. The appeal before us was taken from an order of the Circuit Court of Lauderdale County, denying the appellant's motion to withdraw a guilty plea entered under Sec. 99-15-26, and sentencing him to four years in the custody of the Mississippi Department of Corrections.
On September 7, 1984, Billy Gunn Brown was indicted by a Lauderdale County Grand Jury on a charge of embezzling $21,983.32 from funds collected in his capacity as justice court judge. After reaching a plea bargain agreement with the State, Brown filed in Lauderdale County Circuit Court a petition to enter a plea of guilty. The petition specified that Brown disclaimed any guilt of the charge against him, but that he was accepting the plea bargain under the authority of North Carolina v. Alford, 1 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The petition stated in part:
Based upon the evidence which I have been informed that the State intends to offer at my trial and in consideration of the plea bargaining offer made by the State of Mississippi and having weighed those facts, I do hereby waive my right to a trial by jury to accept said plea bargaining under the authority of North Carolina v. Alford, 400 U.S. 25 [91 S.Ct. 160, 27 L.Ed.2d 162] (1970), while maintaining my innocence. [The] State has recommended (4) four years pursuant to Section 99-15-26 M.C.A. (1972), as amended with the court to determine the supervision, if any, restitution which has already been performed and the defendant to pay court costs. There are no other charges pending against me or to be presented based upon my understanding with the State at this time.
Section 99-15-26 of the Mississippi Code (Supp.1987) provides:
(1) In all criminal cases, felony and misdemeanor, other than crimes against the person, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subdivision (2) of this section. No person having previously qualified under the provisions of this section or having ever been convicted of a felony shall be eligible to qualify for release in accordance with this section. A person shall not be eligible to qualify for release in accordance with this section if such person has been charged (a) with an offense pertaining to the sale, barter, transfer, manufacture, distribution or dispensing of a controlled substance, or the possession with intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance, as provided in Section 41-29-139(a)(1), Mississippi Code of 1972, except for a charge under said provision when the controlled substance involved is one (1) ounce or less of marihuana; or (b) with an offense pertaining to the possession of one (1) kilogram or more of marihuana as provided in Section 41-29-139(c)(2)(D), Mississippi Code of 1972.
(2) Conditions which the circuit or county court may impose under subdivision (1) of this section shall consist of:
(a) Reasonable restitution to the victim of the crime.
(b) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.
(c) Payment of a fine not to exceed the statutory limit.
(d) The court may, in its discretion, require the defendant to remain in the program subject to good behavior for a period of time not to exceed one-half ( 1/2) of the maximum sentence allowable for the crime committed by the defendant.
(3) Upon successful completion of the court-imposed conditions permitted by subdivision (2) of this section, the court shall direct that the cause be dismissed and the case be closed.
(4) This section shall take effect and be in force from and after March 31, 1983.
It was this section under which Brown agreed to plead, and which allows circuit or county judges in limited circumstances to receive a criminal defendant's guilty plea, but withhold acceptance of the plea, and defer sentencing. If the defendant successfully completes certain court-imposed conditions, the cause against him is then dismissed and the case closed.
Following a hearing and pre-sentence investigation, Judge Henry W. Palmer accepted Brown's guilty plea, having determined that it was made voluntarily and with knowledge of its consequences. Pursuant to Sec. 99-15-26, however, Judge Palmer withheld adjudication of guilt. Judge Palmer's order placed Brown under the supervision of the Mississippi Department of Corrections for a period of four years. The judge's order, dated June 27, 1985, stated in part:
Therefore, for said offense and on said plea of guilty, and with the consent of Billy Gunn Brown, being expressed in open Court, it is therefore ORDERED AND ADJUDGED that entering of judgment of guilty and further proceedings in this action are hereby deferred, and Court does accept guilty plea but withholds adjudication of guilt. And it having been made known to the Court that the ends of justice and the best interest of the public will be best served under Section 99-15-26 if further proceedings herein are deferred for a period of four years and the defendant is hereby placed under the supervision of the Mississippi Department of Corrections for four years until the Court in term time or a Judge in vacation shall either enter an adjudication of guilty in accordance herewith to sentence the defendant or until the Court shall alter, extend or terminate the above period of probation and its conditions, and said probationary period shall be subject to the following conditions:
(a) Defendant shall hereafter commit no offense against the laws of this or any state of the United States, or of the United States.
(Emphasis added).
On August 25, 1986, Brown was convicted of the crimes of sexual battery upon a minor child, touching and handling a minor child for lustful purposes, and two counts of contributing to the delinquency of a minor. These offenses occurred during the period between May, 1985, and September, 1985. Since one or more of the offenses occurred after the date of Judge Palmer's order relative to the embezzlement charge, Brown was in violation of that part of the order which stated: "Defendant shall hereafter commit no offense against the laws of this or any state of the United States, or of the United States."
On September 2, 1986, Mary Boler, Field Officer with the State Department of Corrections, filed a petition to have Brown's probation revoked. That same day, the State of Mississippi, through District Attorney Charles Wright, filed a petition asking the court to adjudicate Brown guilty of embezzlement and to impose sentence.
On September 5, 1986, Brown filed a motion to withdraw his guilty plea which had been accepted without adjudication of guilt, and to enter a plea of not guilty. A hearing on all of these motions was conducted on September 9, 1986. At the hearing, Brown testified that at the time he entered the plea he understood that if Judge Palmer were to decide to accept his guilty plea, then he (Brown) would be allowed to withdraw the plea and request a trial. 2 He admitted, however, that he was aware when entering his guilty plea that he was being placed on "a certain type probation" and that the probation would be subject to revocation if he should violate the terms of the court's order. After the State presented evidence of Brown's August, 1986 convictions, and following arguments of counsel, the judge denied Brown's motion to withdraw his guilty plea, and granted the motions of the State. The judge stated in his order:
To take the situation as [the defendant urges] would be to say that an individual could ... choose to maintain his innocence and offer to plead guilty under [section] 99-15-26 and then could do what he wanted when he wanted and however he wanted and then and only then could he be tried if he chose not to have his guilty plea invoked and that would amount to just in effect a blanket continuance at the whim and wish of the defendant. I don't think that is what was conceived. I don't think that would be fair.
The defendant was put under probation. He violated the terms of it. His original bargain was for four years pending good behavior. I am convinced that by being convicted, it wasn't good behavior, therefore, he ought to be committed to serve the four years that he originally bargained for. That will be the order of the court.
From this order of the circuit court, denying his motion to withdraw his guilty plea and sentencing him to four years imprisonment, Brown appeals.
Brown contends that the circuit court had no authority under Sec. 99-15-26 to place him on probation, and that the petition filed by the Department of Corrections to revoke Brown's probation was therefore null and void. Subdivision (2)(d) of Sec. 99-15-26 states: "The court may, in its discretion, require the defendant to remain in the program subject to good behavior for a period of time not to exceed one-half ( 1/2) of the maximum sentence allowable for the crime committed by the defendant." (Emphasis added). It would be promoting form over substance to say that...
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