Carroll v. State

• Decision Date: 05 August 2008
• Docket Number: No. 2006-KP-01406-COA.,2006-KP-01406-COA.
• Citation: 3 So.3d 767
• Parties: Doug M. CARROLL, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

3 So.3d 767

Doug M. CARROLL, Appellant, v. STATE of Mississippi, Appellee.

No. 2006-KP-01406-COA.

Court of Appeals of Mississippi.

August 5, 2008.

Rehearing Denied December 2, 2008.

Certiorari Denied February 26, 2009.

Doug M. Carroll, pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before MYERS, P.J., CHANDLER and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Doug M. Carroll appeals the Circuit Court of Union County's denial of his motion to dismiss the indictment against him for violation of his right to a speedy trial. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 13, 2005, Carroll was indicted by a Union County grand jury for robbery with a deadly weapon pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2006). On April 20, 2006, Carroll filed a motion to dismiss the indictment for violation of his right to a speedy trial. The circuit court denied the motion on June 19, 2006. Subsequently, on June 20, 2006, in the midst of his jury trial, Carroll pleaded guilty to one count of robbery with a deadly weapon. On June 21, 2006, Carroll was sentenced to forty-five years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and five years' post-release supervision.

¶ 3. On September 6, 2006, Carroll's notice of appeal was received and filed in the Mississippi Supreme Court. The cover letter and the certificate of service, however, were both dated June 25, 2006. On appeal, Carroll asserts the following grounds of error: (1) the sentence imposed by the circuit court was illegal in light of the fact that he was a prior convicted felon and therefore was ineligible for a suspended sentence pursuant to Mississippi Code Annotated section 47-7-33; and (2) the circuit court erred in denying his motion to dismiss the indictment for violation of his right to a speedy trial. The State contends that this Court lacks jurisdiction to hear Carroll's appeal on two grounds: (1) Carroll's appeal was untimely, and (2) Carroll pleaded guilty and thus has no right to appeal his conviction and sentence. Finding proper jurisdiction and no error, we affirm.

ANALYSIS

I. Whether this Court lacks jurisdiction on the ground that Carroll's appeal was untimely.

¶ 4. The State argues that this Court lacks jurisdiction to hear Carroll's appeal because it was untimely filed. Mississippi Rule of Appellate Procedure 4(a) mandates that the "notice of appeal . . . shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." "An appeal which is `not timely filed pursuant to Rule 4 or 5' shall be mandatorily dismissed.'" Minchew v. State, 967 So.2d 1244, 1246(¶ 4) (Miss.Ct.App.2007) (quoting M.R.A.P. (2)(a)(1)).

¶ 5. "When challenging an appeal as untimely, the State bears the burden of proving that, under the terms of the prison mailbox rule, the prisoner's notice of appeal was not `filed' within the thirty-day window of Rule 4." Id. at 1246-47(¶ 4) (citing Sykes v. State, 757 So.2d 997, 1000-01(¶ 14) (Miss.2000)); Vance v. State, 941 So.2d 225, 227(¶ 5) (Miss.Ct.App.2006) (citation omitted). "Under the prison mailbox rule, a pro se prisoner's notice of appeal is effectively `filed' under Rule 4 when the prisoner delivers his notice of appeal to the proper prison authorities for mailing." Id. (citing Sykes, 757 So.2d at 1000-01 (¶ 14)).

¶ 6. In this case, Carroll's notice of appeal indicates that the judgment from which he appeals is the circuit court's June 19, 2006, denial of his motion to dismiss the indictment for violation of his right to a speedy trial. Therefore, Carroll was required to file his notice of appeal within thirty days after June 19, 2006. The record indicates that Carroll's notice of appeal was received and filed by the circuit court on September 6, 2006, clearly more than thirty days from the date of the judgment denying Carroll's motion to dismiss the indictment. The cover letter and certificate of service attached to the notice of appeal, however, are dated June 25, 2006, which is within thirty days of June 19, 2006. While we have no way of knowing when Carroll actually delivered his appeal documents to prison authorities for mailing, the State has offered no evidence indicating that Carroll failed to do so within the thirty-day window provided in Rule 4(a). Accordingly, as the State has failed to meet its burden of proving that Carroll's notice of appeal was untimely filed, we find that we are not deprived of jurisdiction to hear this appeal on such ground.

II. Whether this Court lacks jurisdiction to hear Carroll's appeal on the ground that Carroll's guilty plea precludes him from appealing his conviction and sentence.

¶ 7. The State also contends that this Court lacks jurisdiction to hear this appeal because Carroll relinquished his right to appeal his conviction and sentence when he pleaded guilty. The State cites Mississippi Code Annotated section 99-35-101 (Rev.2007), which states:

Any person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.

We find the State's argument to be without merit. The Mississippi Supreme Court has held that, while a conviction resulting from a guilty plea may not be directly appealed, "an illegal sentence handed down pursuant to the plea is appealable." Jennings v. State, 896 So.2d 374, 377(¶ 16) (Miss.Ct.App.2004) (citing Trotter v. State, 554 So.2d 313, 315 (Miss. 1989)).¹ In this case, Carroll argues that his suspended sentence was illegal due to the fact that he was a prior convicted felon; therefore, this Court has jurisdiction to hear Carroll's appeal in this regard. Accordingly, we proceed to consider Carroll's appeal on its merits.

III. Whether Carroll's suspended sentence was illegal due to his status as a prior convicted felon.

¶ 8. Carroll contends that because he was a prior convicted felon at the time he was sentenced, he was not eligible for a suspended sentence in accordance with Mississippi Code Annotated section 47-7-33 (Rev.2004). That section states as follows:

When it appears to the satisfaction of any circuit court or county court in the State of Mississippi, having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in termtime or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.

Prior to pleading guilty to armed robbery, Carroll was convicted of the felony of burglary; therefore, he was not eligible to receive a suspended sentence. As support for his argument, Carroll relies on Weaver v. State, 785 So.2d 1085 (Miss.Ct.App.2001) and Cooper v. State, 737 So.2d 1042 (Miss. Ct.App.1999). In both Weaver and Cooper, this Court held in accordance with section 47-7-33 that the respective defendants should be allowed to withdraw their guilty pleas because the suspended sentences they received were improper inducements to plead guilty due to the fact that the defendants, both prior convicted felons, were not eligible for suspended sentences. Weaver, 785 So.2d at 1088(¶ 12); Cooper, 737 So.2d at 1045 (¶ 13).

¶ 9. However, since Weaver and Cooper were decided, the Mississippi Supreme Court has held that an individual with a prior felony conviction is eligible for a suspended sentence. In Johnson v. State, 925 So.2d 86 (Miss.2006), the supreme court addressed the "ever-present sentencing problem that occurs when a prior convicted felon is given a split sentence of incarceration followed by MDOC supervision, whether it be classified as post-release supervision, or supervised probation." Id. at 91(¶ 8). Johnson, who had a prior felony conviction, was convicted of the sale of cocaine and sentenced to fifteen years' imprisonment, with eight years suspended and five years of post-release supervision.² Id. at 88(¶ 2). On appeal Johnson argued that his suspended sentence was illegal due to the fact that he was a prior convicted felon, and this Court agreed. Id. at 89-90(¶ 4). The Court, however, chose not to remand the case for re-sentencing; rather, the Court removed the eight-year suspended sentence and replaced it with five years of post-release supervision.³ Id. at 90(¶ 6). Upon this Court's invitation,⁴ the supreme court granted the State's writ of certiorari. Id. The supreme court found that Johnson's original sentence was legal; therefore, this Court erred in modifying the sentence. In so holding, the supreme court first noted that "suspending a sentence and granting probation are not interchangeable mechanisms." Id. at 93(¶ 12). The supreme court then discussed two cases that played a particularly crucial role in the development of Mississippi's law as it pertains to suspended sentences for prior convicted felons, the first of which was Robinson v. State, 585 So.2d 757 (Miss.1991).

¶ 10. In Robinson, a defendant with a prior felony conviction was sentenced to a suspended sentence in addition to supervised probation. Johnson, 925 So.2d at 96(¶ 20). On appeal of the circuit court's denial of Robinson's motion for post-conviction relief, the supreme court held that section 47-7-33 does not allow a...