Hunt v. State, 2003-CP-00177-COA.

• Decision Date: 25 May 2004
• Docket Number: No. 2003-CP-00177-COA.,2003-CP-00177-COA.
• Citation: 874 So.2d 448
• Parties: Shannon K. HUNT, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

874 So.2d 448

Shannon K. HUNT, Appellant, v. STATE of Mississippi, Appellee.

No. 2003-CP-00177-COA.

Court of Appeals of Mississippi.

May 25, 2004.

Shannon K. Hunt, Appellant, pro se.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.

KING, C.J., for the Court.

¶ 1. Shannon Hunt, pro se, appeals the dismissal of his request for post-conviction relief by the Montgomery County Circuit Court. Hunt asserts the following issues on appeal, which we quote verbatim:

I. Whether the trial court erred in giving the appellant post-release supervision after his release from confinement. II. Whether the trial court erred in applying the MCA § 47-7-33 and § 47-7-34.

III. That the trial court's erred in not citing any case authority or cases law in denying post-conviction motion without an evidentiary hearing.

Finding no error, we affirm.

FACTS

¶ 2. On April 5, 2002, Shannon Hunt pled guilty in the Circuit Court of Montgomery County to a charge of possession of precursors in violation of Mississippi Code Annotated Section 41-29-313. Hunt was sentenced to ten years in the custody of the Mississippi Department of Corrections with the last five years to be served on post-release supervision.

¶ 3. On January 14, 2003, Hunt filed a motion for post-conviction relief in the Montgomery County Circuit Court. In his motion Hunt contended that as a convicted felon he was not eligible to receive post-release supervision; therefore, the trial court erred in requiring that he serve the last five years of his sentence on post-release supervision. On January 16, 2003, the trial judge found Hunt's motion to be without merit and dismissed it without conducting an evidentiary hearing.

ISSUE AND ANALYSIS

Whether the trial court erred in giving the appellant post-release supervision after his release from confinement.

¶ 4. We look to our familiar standard of review for a trial court's denial of post-conviction relief. "When reviewing a lower court's decision to deny a petition for post conviction relief this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo." Pace v. State, 770 So.2d 1052, 1053(¶ 4) (Miss.Ct.App.2000) (citations omitted).

¶ 5. Hunt contends that he is ineligible for post-release supervision as a convicted felon pursuant to Mississippi Code Annotated Section 47-7-33(1) which states in part:

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[.]...

(emphasis added).

¶ 6. While Hunt is correct in asserting that convicted felons are ineligible for a suspended sentence, his point is of no help to his case because he did not receive a suspended sentence under Mississippi Code Annotated Section 47-7-33. The transcript reveals:

BY MR. BLECK (A.D.A.): Yes, your honor, the State would recommend a sentence of ten years in the custody of the Mississippi Department of Corrections. After the defendant has served five years, to be released on post-release supervision, to pay all court costs, fees, assessments, $125 lab fee to the Jackson lab and a $500 fine.

. . .

BY THE COURT: I sentence you to ten years with the Mississippi Department of Corrections. I suspend—I don't suspend it. After you serve five years of that sentence, I order that you be placed on post-release supervision for a period of five years, provided at that time that you have abided by the rules and regulations of the Mississippi Department of Corrections. Order you to pay a $500 fine and costs, which costs including a $125 lab fee to the crime lab in Jackson. Order that all these amounts be paid within a year of your release from incarceration. Did you read Paragraph 15 of the petition, which are the terms and conditions of your post-release supervision?

(emphasis added).

¶ 7. Hunt has confused Mississippi Code Annotated Section 47-7-33 with Mississippi Code Annotated Section 47-7-34(1), which is the provision for post-release supervision. Under Mississippi Code Annotated Section 47-7-34(1) convicted felons are eligible to receive post-release supervision. Mississippi Code Annotated Section 47-7-34(1) states in relevant part:

(1) When a court imposes a sentence upon a conviction for any felony committed after June 30, 1995, the court, in addition to any other punishment imposed if the other punishment includes a term of incarceration in a state or local correctional facility, may impose a term of post-release supervision. However, the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. The defendant shall be placed under post-release supervision upon release from the term of incarceration. The period of supervision shall be established by the court.

In Carter v. State the Mississippi Supreme Court held, "[M]iss.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." Carter v. State, 754 So.2d 1207, 1208(¶ 4) (Miss. 2000). "The program creates a split-sentencing option for repeat offenders." Id. Post-release supervision is an alternative to probation designed specifically for felons, and as such we find no merit to Hunt's contention that as a convicted felon he was ineligible for post-release supervision. Gaston v. State, 817 So.2d 613, 619 (¶ 20) (Miss.Ct.App.2002).

¶ 8. While the actual sentencing order was not made a part of the appellate record, this Court does have the benefit of the sentencing transcript. A careful reading of that transcript clearly indicated that the trial court sentenced Hunt to five years of actual incarceration followed by five years of post release supervision, with no portion of his sentence suspended.

¶ 9. Accordingly, we find no merit to this issue, and we affirm Hunt's sentence.

II.

Whether the trial court erred in applying the MCA § 47-7-33 and 47-7-34.

¶ 10. The discussion of issue I. renders issue II. moot.

III.

That the trial court's erred in not citing any case authority or cases law in denying post-conviction motion without an evidentiary hearing.

¶ 11. Hunt contends that he should have been granted an evidentiary hearing "to see if the lower's [sic] court improperly applied the law." Hunt argues that the court's denial of his motion by finding it to be "without merit" was "not enough" to deny his motion, since no caselaw or authority was cited. ¶ 12. An evidentiary hearing is not required where the allegations in the post-conviction relief motion are specific and conclusive. Davis v. State, 743 So.2d 326, 352 (¶ 83) (Miss.1999). The citation to caselaw, and other appropriate authority, while strongly encouraged as it aids in the appellate process, is not required. "The reason the law encourages trial courts to issue findings of fact and conclusions of law pertains to the facilitation of the appellate process." Culbert v. State, 800 So.2d 546, 550(¶ 8) (Miss.Ct.App.2001). "Without such procedures, the trial record would be blank, leaving this Court to speculate as to the factual foundations of the appeal." Id. The statute relating to post-conviction relief includes the following provision:

If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.

Miss.Code Ann. § 99-39-11(2) (Rev.2000).

¶ 13. Under this statute dismissal is appropriate where "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Culbert, 800 So.2d at (¶ 9), citing Turner v. State, 590 So.2d 871, 874 (Miss.1991). "Furthermore, where the trial court summarily dismisses the post-conviction relief claim, it does not have an obligation to render factual findings and this Court will assume that the issue was decided consistent with the judgment and ... will not be disturbed on appeal unless manifestly wrong or clearly erroneous." Culbert v. State, 800 So.2d at (¶ 9) (citations omitted).

¶ 14. We find that the trial court's dismissal is consistent with the evidence and testimony presented in the record. Accordingly, we find this issue to be without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY DENYING POST-CONVICTION RELIEF IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO MONTGOMERY COUNTY.

BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING AND GRIFFIS, JJ.

SOUTHWICK, P.J., concurring.

¶ 16. I write separately because of a matter of recurring relevance and, at least to this judge, confusion regarding the sentencing of recidivistic felons. The majority appears correct in its interpretation of section 47-7-34 of the Mississippi Code. Why that section should be read to permit a term of post-release supervision for prior felons, despite another statute's prohibition on suspended sentences and probation for the same defendants, is what I will review.

¶ 17. This Court has at times thoughtfully addressed the issues that often are raised in post-conviction relief proceedings because of allegedly illegal granting of probation to convicted...