Carter v. State
| Decision Date | 20 January 2000 |
| Docket Number | No. 98-CT-00303-SCT.,98-CT-00303-SCT. |
| Citation | 754 So.2d 1207 |
| Parties | Cedric CARTER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Cedric Carter, Appellant, pro se.
Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.
EN BANC.
ON WRIT OF CERTIORARI
COBB, Justice, for the Court:
¶ 1. Cedric Carter, a first offender, pled guilty to manslaughter on July 1, 1994. He was sentenced to the statutory maximum of 20 years in prison but with six months suspended. He was also sentenced to five years probation. On January 21, 1998, Carter filed a motion for post-conviction relief in the trial court, asserting that the combination of the prison time and the probationary term constituted an illegal sentence because the overall length exceeded the 20 year maximum. The trial court denied the motion on grounds that the petition was time barred. The Court of Appeals initially affirmed but, after rehearing, reversed and remanded for re-sentencing because of this Court's intervening decision in Goss v. State, 721 So.2d 144 (Miss.1998). Carter v. State, No. 98-CP-00303-COA (Miss.Cr. App. Apr. 20, 1999).
¶ 2. Because the appellate decision was issued on Carter's motion for rehearing, the State did not file a second motion for rehearing prior to seeking review on writ of certiorari. M.R.A.P. 17(b) provides:
A party seeking review of a judgment of the Court of Appeals must first seek review of that court's decision by filing a motion for rehearing in the Court of Appeals. If a party seeks review in the Supreme Court, a petition for writ of certiorari for review of the decision of the Court of Appeals must be filed in the Supreme Court and served on other parties within fourteen (14) days from the date of entry of judgment by the Court of Appeals on the motion for rehearing, unless such time be extended upon motion filed within such time....
The rule does not provide that a successive motion for rehearing be filed by the party aggrieved by a decision issued on rehearing, and the State filed its petition for writ of certiorari within fourteen days of the decision's issuance. To the extent that M.R.A.P. 17(b) literally requires that a motion for rehearing be filed under any circumstances prior to seeking review, we suspend that rule in the present case pursuant to the authority of M.R.A.P. 2(c).
¶ 3. To determine the proper course of action in the present case, we first carefully review our decision in Goss. Daniel Goss, a prior felon, entered a plea of guilty on May 15, 1995, to burglary and was sentenced to ten years in prison with three years suspended plus a five year probation even though, as a repeat offender, Goss was not eligible for probation. The statutory maximum sentence for burglary of a dwelling is ten years pursuant to Miss.Code Ann. § 97-17-27(1994). In 1997, Goss filed a motion for post-conviction relief which was denied by the trial court. Goss appealed and argued that his combined sentence and probation exceeded the statutory maximum. Although this Court found that the probation itself was not in excess of Miss.Code Ann. § 47-7-37 (Supp.1999)(5 year maximum probation) and that Miss.Code Ann. § 47-7-34 (Supp. 1999) was not applicable, we vacated the sentence and remanded the matter for resentencing. This Court found "the sentence in its totality violates the limits imposed by the statutes and offends the intent of the legislature in restricting the duration of punishment imposed by the courts." 721 So.2d at 145. This Court concluded that, "[t]he sentence imposed by the trial court was erroneous due to the possibility that Goss would serve more than ten years for the crime of burglary of a dwelling as prescribed by Miss.Code Ann. § 97-17-27." Id. at 147.
¶ 4. Miss.Code Ann. § 47-7-34 created the post-release supervision program which provides for a term of post-release supervision in addition to any term of incarceration imposed upon those already convicted of a felony. The program creates a split-sentencing option for repeat offenders. The program is different from § 47-7-33(1993) probation in that it does not allow the combined terms to exceed the statutory maximum period of incarceration. Post-release supervision is a legislative creation separate and distinct from probation. This is evidenced by the statutory provision that a "period of post-release supervision shall be conducted in the same manner as a like period of supervised probation...." Miss.Code Ann. § 47-7-34(2)(Supp.1999). ¶ 5. Probation under § 47-7-33 is a conditional term that is not a part of the prison sentence and is therefore not subject to the "totality" of sentence concept found in § 47-7-34. In Moore v. State, 585 So.2d 738, 741 (Miss.1991), this Court stated that "`[p]robation' denotes a release of the defendant, under suspension of sentence, into the community under the supervision of a probation officer." There, this Court distinguished the differences between probation and parole, as follows:
¶ 6. The Moore Court ultimately held that Moore's parole was a "by-product of the fifteen (15) year unsuspended portion of his sentence" and his probation was "a by-product of the fifteen (15) year suspended portion of the original sentence." Id. at 741.
¶ 7. Miss.Code Ann. § 47-7-37 (Supp. 1999) provides, in pertinent part, that "[n]o part of the time that one is on probation shall be considered as any part of the time that he shall be sentenced to serve." In brief, a probationary period does not equal time served. Carter was sentenced under Miss.Code Ann. § 97-3-25 (1994) which states that "[a]ny person convicted of manslaughter shall be fined in a sum not less than five hundred dollars, or imprisoned in the county jail not more than one year, or both, or in the penitentiary not less than two years, nor more than twenty years." (emphasis added). Our decision turns on the explicit wording of the statutory scheme. The plain language computes the statutory maximum of the sentence based on time actually served in the county jail or penitentiary. Absent parole or some other intervening circumstance, Carter will serve nineteen and one-half years in the penitentiary. Further, if he violates the conditions of his five-year probationary period, he would also have to serve the one-half year suspended, resulting in a total of twenty years served, but no more.
¶ 8. This Court attempted to distinguish Goss in Wilson v. State, 735 So.2d 290 (Miss.1999). In Wilson, this Court stated that 1Id. at 292. Even though Goss was sentenced under Section 47-7-33, this Court held that sentence time plus probation time is limited to the maximum sentence. The subsequent effect of the Goss holding has been to restrict unnecessarily the trial courts' ability to impose a split-sentence upon a previously convicted felon. This Court's holding in Goss that "the sentence in its totality violates the limits imposed by the statutes and offends the intent of the legislature in restricting the duration of punishment imposed by the courts" is incorrect and is therefore overruled.
¶ 9. In the present case, Carter's sentence of nineteen and one-half years incarceration and six months suspended plus five years of probation does not equate to twenty-five years of time-served, and the sentence is not in violation of the statute. The judgment of the Court of Appeals is, therefore, reversed and rendered, and the judgment of the Pike County Circuit is reinstated.
¶ 10. REVERSED AND RENDERED.
¶ 11. I am sympathetic with the difficulty that this Court and the trial courts have endured in our mutual attempts to comply with Miss.Code Ann. § 47-7-33 (1993) which states in pertinent part:
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...
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