Leonard v. State
| Decision Date | 02 January 1973 |
| Docket Number | No. 47058,47058 |
| Citation | 271 So.2d 445 |
| Parties | Walter LEONARD v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Campbell, DeLong, Keady, Robertson & Hagwood, Greenville, for appellant.
A. F. Summer, Atty. Gen. by T. E. Childs, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Appellant, Walter Leonard, pled guilty in the August 1971 Term of Circuit Court in Washington County to two indictments which respectively accused him of the crimes of forgery and uttering a forgery. He was sentenced to two years imprisonment for each of said crimes, with the sentences to run consecutively, making a total of four years imprisonment. The court simultaneously suspended execution of the sentences and placed appellant on probation for a period of two years on each indictment. In April 1972 appellant was charged with violating the conditions of his probation. A revocation hearing was conducted and on May 4, 1972, the circuit judge found him guilty of violating his probation in three particulars, to-wit: (1) being at a disreputable place, the County Line Cafe, a 'juke joint,' where drinking and gambling took place; (2) being an accessory after the fact to robbery and murder; and (3) possession of 'dope.' The court then revoked appellant's suspension of sentence and probation. Further, in effect the court set aside the original sentences and imposed greater sentences than those originally imposed. Appellant was at the time of said revocation simultaneously sentenced to ten years imprisonment on each of the said original indictments, which sentences were to run consecutively, making a total of twenty years imprisonment, five times greater than the original sentences. Obviously the court was relying upon Mississippi Code 1942 Annotated section 4004-25 (Supp.1971) in giving appellant greater terms of imprisonment than when he originally pled guilty. This appeal is from said two greater sentences. Two assignments of error are urged by appellant, but we consider only the following assignment:
The proper construction of Miss.Code Ann. § 4004-25 (Supp.1971) does not permit increased punishment at probation revocation hearings where the probationer has been sentenced earlier to a definite term of imprisonment.
Appellant, represented by court appointed counsel herein, has filed a most excellent brief in which he contends that Mississippi Code 1942 Annotated section 4004-23 (Supp.1971) must be given consideration and adhered to in construing the Mississippi Probation and Parole Act when entering an order after revocation of his suspended sentence and probation pursuant to section 4004-25, supra. Section 4004-23, supra, in part provides:
. . . such court (circuit or county) shall have the power . . . to suspend the imposition or execution of sentence, and place the defendant on probation. . . .
Section 4004-25, supra, among other things provides that when a defendant is charged with violation of the conditions of probation:
. . . the court . . . shall cause the defendant to be brought before it and may continue or revoke the probation or suspension of sentence, and may cause the sentence imposed to be executed or may impose any sentence which might have been imposed at the time of conviction. (Emphasis added).
Appellant argues that once a definite sentence is imposed by the court, it cannot subsequently 'set aside' that sentence and impose a greater one for violation of probation conditions.
In support of his position, appellant relies upon Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943) which presented a factual situation similar to the one here. Roberts, supra, overruled the lower court's imposition of a greater sentence under the Federal Probation Act. The United States Supreme Court said that the Act did not state nor imply that the lower court has the authority to 'set aside' an earlier sentence and impose a greater one. We have not previously been called upon to decide whether or not a judge, under circumstances disclosed by this record, pursuant to the Mississippi statutes on probation and parole, may impose a sentence greater than that originally imposed. Appellant also cites the case of Hord v. State, 450 S.W.2d 530 (Ky.1970), in which the Kentucky Supreme Court held that it was unconstitutional for the trial court to impose a greater sentence under a statute very similar to ours. The appellee's argument is based on th...
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Brown v. State
...attorney's position would do) in violation of defendant's constitutional guaranty not to be twice placed in jeopardy." In Leonard v. State, Miss., 271 So.2d 445 (1973), in dealing with provisions of the Mississippi Probation and Parole Act, the court "After a careful review of the Code sect......
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Sallie v. State
...15. On appeal, Sallie relied primarily on two cases for his claim that the change to his original sentence was illegal: Leonard v. State , 271 So.2d 445 (Miss. 1973) ; and Eastman v. State , 909 So.2d 171 (Miss. Ct. App. 2005). Sallie (III ), 237 So.3d at 760–62, 2016 WL 7636895, at **2–3. ......
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Robinson v. State
...Robinson's arrest on similar charges, and ordered Robinson to serve the three-year term--which a judge is empowered to do. Leonard v. State, 271 So.2d 445, 447 (1973) ("It follows logically that if a circuit court initially exercises its sentencing power by imposing a sentence and then susp......
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Segarra v. State
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