Perciful v. Holley, 38716

• Decision Date: 06 April 1953
• Docket Number: No. 38716,38716
• Citation: 217 Miss. 203,63 So.2d 817
• Parties: PERCIFUL v. HOLLEY, Sheriff.
• Court: Mississippi Supreme Court

Page 817

63 So.2d 817

217 Miss. 203

PERCIFUL v. HOLLEY, Sheriff.

No. 38716.

Supreme Court of Mississippi.

April 6, 1953.

Floyd W. Cunningham, Booneville, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

The affidavit in question was executed on June 23, 1950, and charged that appellant, Herman (Buck) Perciful 'did wilfly & unlawful Sell 1/2 Pint of Liquor' (sic). Perciful pleaded guilty to this charge, and at the August 1950 term of the Circuit Court of Prentiss County, he was sentenced to pay a fine of $500 and to serve three months in the county jail, but the sentence was suspended by the circuit judge, under the authority of Code of 1942, Section 2541, conditioned upon Perciful's good behavior.

On February 14, 1952, about eighteen months thereafter, the district attorney filed in the Circuit Court of Prentiss County a petition averring that Perciful had violated the terms of the suspension of his sentence; that since the judgment of August 1950 he had been convicted several times of the sale and possession of intoxicating liquor and of public drunkenness; and that this conduct was a breach of the condition upon which Perciful's sentence was suspended in August 1950. The petition asked the court to revoke the prior suspension of sentence and to enforce the 1950 sentence. No answer was filed by Perciful to that petition, and on February 19th a hearing was had on the petition to revoke the 1950 suspension of sentence. The State produced several witnesses who testified in support of the averments of the petition of the district attorney, as to Perciful's several convictions since the suspension of sentence in 1950. Perciful offered no testimony to the contrary, so the fact that Perciful had violated the terms of the August 1950 suspension of sentence is undisputed. Hence Perciful violated the terms of his suspension of sentence, and the circuit court correctly so found.

Appellant Perciful, at the hearing on February 19th, undertook to attack the petition for revocation of the suspension of sentence in a collateral manner, by making a motion for the court to allow him to withdraw his plea of guilty to the charge in the affidavit, and to be allowed to enter a plea of not guilty and to have a trial on that issue. The basis of this motion was that the affidavit failed to charge any violation of law of this State and is void on its face. It was further averred in the motion to withdraw the plea of guilty that appellant had a meritorious defense to 'any such attempted charge against him.' The circuit court overruled appellant's motion to withdraw his plea of guilty which had been entered in 1950, and stated that the affidavit, which charged an unlawful sale of one-half pint of 'liquor', would have been amendable at the time appellant pleaded guilty, and that when an affidavit is amendable and no objection is raised to it by the defendant at the time of the trial, it is too late to do so after the trial.

Hence on February 21, 1952, the circuit court rendered a judgment, finding that appellant had violated the terms of the suspension in 1950 of his sentence, and revoked in part the suspension of sentence by ordering that defendant should pay a fine of $300. The remainder of the aforesaid sentence was continued to be suspended upon Perciful's future good behavior. Perciful took no appeal from that judgment.

Two days later, on February 23, 1952, Perciful filed in the Circuit Court of Prentiss County a petition for writ of habeas corpus, setting up the above stated facts. The petition then charged that the respondent, Ben F. Holley, Sheriff of Prentiss County, and appellee herein, held the petitioner in the county jail under a void order and sentence of the circuit court executed on February 21st, that that order and sentence was void because the 1950 affidavit charged no crime against petitioner under the law and failed to inform the defendant of the nature of the charge against him. The affidavit had charged that appellant on a stated date 'did wilfly & unlawful Sell 1/2 Pint of Liquor' (sic). By stipulation between the district attorney and Perciful's attorney, it was agreed that the original records in No. 5623, being the August 1950 conviction in State v. Perciful, should be considered as part of the evidence before the circuit court, and that the answer of the respondent sheriff was that he was holding petitioner under the order of the circuit court of February 21, 1952, revoking in part the 1950 suspension of sentence. It was also stipulated that the court could consider as part of the record, on the petition for writ of habeas corpus, a transcript of the record on the petition of the district attorney for revocation of suspension of sentence, the hearing of which was held on February 19th. On March 1st the circuit court rendered a judgment denying the relief sought in the petition for writ of habeas corpus, holding in effect that respondent sheriff was detaining appellant under a proper order of the circuit court, that the 1950 conviction of appellant on the quoted affidavit was not void, and allowing an appeal under Code Sections 1177-79. From that judgment of March 1st appellant has taken the present appeal.

Appellant's brief argues in effect two reasons why the circuit court erred in denying him relief on his petition for habeas corpus and in failing to hold that the affidavit was void. He first says that at the time of his plea of guilty he was not advised of the insufficiency in law of the affidavit, and that the court abused its discretion in refusing to permit him to withdraw his plea of guilty and substitute a plea of not guilty and obtain a trial on that issue. But appellant took no appeal from the judgment of February 21, 1952, denying the motion to withdraw plea of guilty. Moreover, the trial court has a broad discretion in determining whether to permit a plea of guilty to be withdrawn, and under the present circumstances we certainly cannot say that the circuit court abused its discretion in denying that relief. Stafford v. State, Miss., 1951, 55 So.2d 477. In Miles v. Monaghan, Sheriff, 1951, 211 Miss. 150, 154, 51 So.2d 212, 214, it was said that 'Trial judges are vested...