Leech v. State, No. 2007-CP-00566-COA.

• Decision Date: 22 July 2008
• Docket Number: No. 2007-CP-00566-COA.
• Citation: 994 So.2d 850
• Parties: Willie LEECH, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

994 So.2d 850

Willie LEECH, Appellant v. STATE of Mississippi, Appellee.

No. 2007-CP-00566-COA.

Court of Appeals of Mississippi.

July 22, 2008.

Rehearing Denied November 18, 2008.

Willie Leech, Appellant, pro se.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Before MYERS, P.J., GRIFFIS, ROBERTS and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. Willie Leech appeals pro se from the judgment of the Circuit Court of Lowndes County dismissing his motion for post-conviction relief as time-barred. In his motion, Leech argued that: (1) his probation was unlawfully revoked and his suspended sentence was unlawfully reinstated, (2) he received ineffective assistance of counsel at the revocation hearing, and (3) the reinstatement of his suspended sentence constituted double jeopardy. On appeal, Leech reasserts the issues he raised in his motion for post-conviction relief and further argues that the trial court erred in dismissing his motion as time-barred.

¶ 2. Because Leech's motion for post-conviction relief alleged that his probation was unlawfully revoked and his suspended sentence was unlawfully reinstated, we find that the trial court erred in dismissing his motion as time-barred. However, after reviewing the issues on their merits, we find that Leech is entitled to no relief. Therefore, we affirm.

FACTS

¶ 3. On May 12, 1988, Leech appeared before the Circuit Court of Lowndes County and pleaded guilty to accessory before the fact of armed robbery. He received a twenty-year suspended sentence and was placed on supervised probation for a period of five years. In May 1989, after testing positive for illegal drugs, Leech's probation was modified to require that he "serve as a condition of his probation 90 days in the Lowndes County Jail." Shortly after serving the ninety days, Leech moved to Allentown, Pennsylvania. On May 30, 1990, an affidavit of violation of probation, a bench warrant, and a petition to revoke Leech's suspended sentence were filed in the Lowndes County Circuit Court. These documents appear in the record only by way of notation of entry on the docket sheet. However, testimony from the resulting revocation hearing reveals that Leech was charged with failing to report to his probation officer from November 1989 through May 1990, failing to pay supervision fees, and again testing positive for illegal drugs.

¶ 4. On May 17, 2006, Leech was served with the May 30, 1990, petition to revoke, resulting in his arrest. On August 8, 2006, a revocation hearing was held, at which Leech admitted that he violated the terms of his probation as set forth in the revocation petition. Leech also stated that he wished to waive a hearing in the matter. Consequently, the trial judge ruled on the petition with very little factual discussion made on the record.

¶ 5. In reaching his decision, the trial judge stated:

This is a rather old case, but it's been remaining on the Court's docket because a petition to revoke was filed within the period of time that [Leech] was on probation, which means that the probationary period stops at the filing of the petition.

Shortly thereafter the following exchange took place between the trial judge and Leech:

BY THE COURT: Mr. Leech, you do not have to answer the question unless you feel that you want to. Where were you?

[BY LEECH]: I had moved to Pennsylvania. Allentown, Pennsylvania.

BY THE COURT: You've been in Pennsylvania the whole time?

[BY LEECH]: Yes, sir.

BY THE COURT: How did they find out where you were?

[BY LEECH]: I came back.

¶ 6. The trial court stated that Leech would not receive credit for the time that he was at large.¹ Then, based on Leech's admissions, the trial judge concluded that Leech had violated the terms of his probation and ordered that Leech's twenty-year sentence be reinstated; a revocation order was entered the same day-August 8, 2006.

¶ 7. On February 20, 2007, Leech filed a motion for post-conviction relief, asserting that: (1) his probation was unlawfully revoked and his suspended sentence was unlawfully reinstated, (2) he was denied effective assistance of counsel during the revocation hearing, and (3) the reinstatement of his entire twenty-year suspended sentence constituted double jeopardy. The trial court dismissed Leech's motion as time-barred by the three-year statute of limitations pursuant to Mississippi Code Annotated Section 99-39-5(2) (Rev.2007). Aggrieved, Leech now appeals to this Court.

STANDARD OF REVIEW

¶ 8. We will not reverse a trial court's decision to dismiss a motion for post-conviction relief unless it is determined that the trial court's decision was clearly erroneous. Willis v. State, 904 So.2d 200, 201(¶ 3) (Miss.Ct.App.2005) (citing McClinton v. State, 799 So.2d 123, 126(¶ 4) (Miss. Ct.App.2001)). Questions of law, however, are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002). A trial court may dismiss a motion for post-conviction relief "[i]f 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. . . ." Miss.Code Ann. § 99-39-11(2) (Rev.2007).

DISCUSSION

1. Whether the trial court erred in dismissing Leech's motion as time-barred.

¶ 9. We first address Leech's claim that the trial court erred in dismissing his motion for post-conviction relief as time-barred under Mississippi Code Annotated section 99-39-5(2) (Rev.2007). That section provides in pertinent part:

A motion for relief under this article shall be made . . . within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations . . . are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. . . .

Miss.Code Ann. § 99-39-5(2) (emphasis added). A post-conviction claim alleging unlawful revocation of probation is not subject to the time bar of section 99-39-5(2). Daggans v. State, 741 So.2d 1033, 1037(¶ 12) (Miss.Ct.App.1999); see also Jackson v. State, 965 So.2d 686, 690(¶ 11) (Miss.2007) (a motion for post-conviction relief alleging an illegal sentence is not subject to the time bar).

¶ 10. Because Leech's motion for post-conviction relief alleged that his probation had been unlawfully revoked and that his suspended sentence had been unlawfully reinstated, we find that the trial court erred in dismissing Leech's motion as time-barred.

2. Whether revocation was timely pursued.

¶ 11. Leech argues that the trial court lacked authority to revoke his probation and reinstate his suspended sentence because his five-year probationary period had expired at the time his probation was revoked. The State argues that the probationary period was tolled because a revocation petition was filed in the circuit court prior to the expiration of the probationary period. Jackson v. State, 483 So.2d 1353, 1356 (Miss.1986).

¶ 12. The procedure for revocation is set forth in Mississippi Code Annotated section 47-7-37 (Supp.2006), which provides in pertinent part:

At any time during the period of probation the court, or judge in vacation, may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the probationer to be arrested. Any probation and parole officer may arrest a probationer without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the probationer has, in the judgment of the probation and parole officer, violated the conditions of probation. Such written statement delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention shall be sufficient warrant for the detention of the probationer.

¶ 13. Leech's five-year probationary period began to run on May 12, 1988, when he was "released on supervised probation following suspension of the original sentence." See Moore v. State, 585 So.2d 738, 740-41 (Miss.1991). Therefore, his probationary period expired on May 12, 1993. Although a revocation petition was filed in the circuit court on May 30, 1990, Leech was not served with the petition or arrested until May 2006, and his probation was not revoked until August 8, 2006. At issue is the State's authority to revoke probation after the probationary period has expired.

¶ 14. Probation may be lawfully revoked beyond the probationary period if a revocation petition is filed prior to the end of the probationary period — an act deemed to "toll" the running of the probationary period — and the State acts on the petition within a reasonable time. Jackson, 483 So.2d at 1356 (finding that probation was lawfully revoked where a revocation petition was filed eleven days prior to the probationary period's end, and the defendant's probation was revoked thirteen days later, i.e., two days after the probationary period expired).

¶ 15. Leech cites Simpson v. State, 785 So.2d 1121, 1124(¶ 11) (Miss.Ct.App.2001) and Ellis v. State, 748 So.2d 130, 134 (¶¶ 13-14) (Miss.1999) and argues that the probationary period was not tolled. For the reasons explained below, we find the instant case distinguishable from Simpson and Ellis.

¶ 16. In Ellis, the probationer was arrested and her probation was revoked several months after her probationary period ended. Ellis, 748 So.2d at 134 (¶¶ 13-15). There, the only action taken by the State to pursue revocation prior to the end of the probationary period was the completion of a form warrant by a probation officer, which also deputized an appropriate officer to arrest the probationer; the State filed no revocation petition prior to the end of the probationary period. Id. at 132(¶¶ 4-6). The court in Elli...