Tunstall v. State, 1998-CA-01325-SCT.

• Citation: 767 So.2d 167
• Decision Date: 18 November 1999
• Docket Number: No. 1998-CA-01325-SCT.,1998-CA-01325-SCT.
• Parties: Chuck TUNSTALL v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

767 So.2d 167

Chuck TUNSTALL v. STATE of Mississippi.

No. 1998-CA-01325-SCT.

Supreme Court of Mississippi.

November 18, 1999.

Rehearing Denied February 3, 2000.

Robert P. Chamberlin, Hernando, Attorney for Appellant.

Office of the Attorney General by John R. Henry, Jr., Attorney for Appellee.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. Chuck Tunstall appeals to this Court after a denial of post conviction relief by the DeSoto County Circuit Court. The lower court held that Tunstall was on probation for the 1990 crime of felony possession of cocaine with intent when he was arrested later for disorderly conduct, possession of a firearm by a convicted felon, and possession of cocaine. The court revoked the suspended sentence and ordered Tunstall to serve the previously suspended 11 years.

¶ 2. This very issue previously was presented to this Court for consideration by Tunstall. Tunstall v. State, No. 97-CA-000252-SCT, 723 So.2d 1172 (Miss. April 2,1998)(unpublished opinion)(Tunstall I). In Tunstall I, in remanding for a hearing, this Court found that we were unable to determine whether or not the lower court placed Tunstall on probation and whether Tunstall was told of the conditions of that probation.

¶ 3. On remand the lower court again concluded that Tunstall was placed on probation, but that the magic word probation was not used. Thus, this Court is again presented with the question of whether Tunstall was in fact placed on probation for his crimes committed in 1990. In the interim, this Court decided Wilson v. State, 735 So.2d 290 (Miss.1999) which now controls the case at bar. After consideration of the argument and the record, we find that Tunstall was placed on probation and told of the conditions of that probation. We therefore affirm the circuit court's denial of Tunstall's post conviction relief request.

STATEMENT OF THE FACTS

¶ 4. On November 2, 1990, Olive Branch Police Officers Norris and Lincoln identified Chuck Tunstall while in a convenience store. The officers informed Tunstall that there was a warrant out for his arrest and that he would have to go with them. Before leaving with the officers, Tunstall stopped by his car and dropped a bag of white substance on the floorboard. The officers confiscated the bag which contained 27 rocks of crack cocaine. Tunstall was arrested and charged with felony possession of cocaine with intent to distribute. He pled guilty to the charge and was sentenced to 15 years, with the last 11 years suspended pending "good behavior."

¶ 5. Later, Tunstall was arrested and charged with disorderly conduct, possession of a firearm by a convicted felon, and possession of cocaine. As a result, the State filed a petition to revoke Tunstall's suspended sentence. See Tunstall I. slip op. at 1-2 (cited in this case pursuant to Miss. R.App. P. 35-A(c)). The circuit court revoked the suspended sentence ordering Tunstall to serve the previously suspended 11 years.

¶ 6. On November 22, 1996, Tunstall filed an unsuccessful motion for post-conviction relief ["PCR"] arguing he was not placed on probation in the manner required by Miss.Code Ann. § 47-7-33. See Tunstall, I., slip op. at 2. The Court reversed and remanded the case in an unpublished opinion. See Tunstall, I. The Court concluded:

Since it is unclear from the record whether Tunstall was placed on probation, this Court reverses the circuit court's denial of the post-conviction relief motion and remands for such determination. If on remand the circuit court finds that Tunstall was not placed on probation, then it is without authority to revoke his suspended sentence.

Tunstall, I., slip op. at 6.

¶ 7. During the July 31, 1998, remand hearing, the circuit court found that Tunstall was placed on probation. The circuit court reasoned that since the sentence explained that if another crime was committed, Tunstall should be returned to prison, that the sentence was legal and done correctly. The July 31, 1998, order denied Tunstall's request for relief and dismissed the PCR motion with prejudice. Tunstall's motion for rehearing was denied and on appeal to this Court, Tunstall poses the following issue:

WHETHER THE CIRCUIT COURT OF DESOTO COUNTY, MISSISSIPPI, ERRED BY DENYING THE RELIEF REQUESTED IN THE POST-CONVICTION RELIEF MOTION. MORE PARTICULARLY, WHETHER THE RECORD REFLECTS THAT THE CIRCUIT COURT OF DESOTO COUNTY, MISSISSIPPI, PLACED TUNSTALL ON PROBATION, AND, IF NOT, WHETHER SUCH FAILURE TO SO DO REQUIRED A FINDING IN FAVOR OF TUNSTALL ON HIS POST-CONVICTION RELIEF MOTION.

ANALYSIS OF THE LAW

¶ 8. Because of the lack of sufficient record to support the trial court's decision, this Court previously reversed and remanded Tunstall's case to the trial court for determination of whether or not the lower court placed Tunstall on probation and whether Tunstall was told of the conditions of that probation. Tunstall, I., slip op at 5-6. The Tunstall I Court was concerned that if he was not placed on probation, then the lower court would be without authority to revoke his suspended sentence. On remand, the trial court opined that although the magic word "probation" was not used, nonetheless, Tunstall was in fact placed on probation.

¶ 9. Tunstall originally pleaded guilty to possession of cocaine with intent to distribute and on July 10, 1991, was sentenced to 15 years with the last 11 years suspended. These new charges occurred on September 25, 1995, and formed the basis for the revocation. Tunstall was arrested and charged for additional crimes on May 31, 1996, approximately four-years and eleven months after his prior plea and sentence on July 10, 1991, prompting the State to file its petition to revoke his suspended sentence. Thus, Tunstall's revocation occurred during the five-year maximum probation time period allowed by statute.

¶ 10. We cannot distinguish this Court's decision in Wilson v. State, 735 So.2d 290 (Miss.1999) from the case at bar. Wilson was decided in the interim after Tunstall I. There we held that if the sentencing proceeding sufficiently conveyed reasonably specific conditions of behavior required, we will find an implied "period of probation" for the maximum of period allowed by law such that a suspended sentence under those conditions is deemed to be accompanied by a period of probation as required by the statute. In Wilson the trial court placed Wilson on unsupervised probation which did not require reporting and supervision of the Department of Corrections. Wilson thus argued that he was not placed on probation. However, Wilson was in fact given specific conditions and terms by the trial judge and was told that he was not to violate any of these conditions, as was Tunstall in the case at bar. Accordingly, Wilson controls this case. Here, as in Wilson, Tunstall was told that he would "be subject to the jurisdiction of [the] court for a term of fifteen years, and that, if the prisoner found himself [himself] in trouble anytime in that fifteen years, he could be hauled into court for ... a violation of [his] suspended sentence." Tunstall was further advised that upon any violation of his suspended sentence, "... if [he] committed another crime ..."—, he could be required to serve in prison the portion of the sentence suspended. Tunstall was specifically told to maintain "good behavior." The term clearly means to avoid further criminal misconduct. Tunstall's sentence imposed was thus suspended upon the condition that he avoid further criminal misconduct. Tunstall's probation arises from the judicial act of the trial judge in setting a condition upon his suspended sentence. Under Wilson, that admonition was valid and sufficient for a maximum probationary period of five years. Here, Tunstall transgressed the law within the five year period. The imposition of the suspended portion of his sentence was therefore valid.

¶ 11. Although the word "probation," per se, does not appear in the record, nonetheless, Tunstall was in fact placed on probation. In Artis v. State, 643 So.2d 533 (Miss.1994), where the defendant was simply given an unconditioned suspended sentence, this Court held that the advice given the prisoner at the time was insufficient to meet the requirement of notice of the terms or conditions appurtenant to a suspended sentence, because the court failed to apprise the defendant of those terms and conditions. Id. at 538. Here, unlike Artis, Tunstall was not given an unconditioned suspended sentence and he was also informed by the trial court of both the existence of a condition as well as the meaning and effect of the condition. Tunstall knew that his commission of future crimes could result in revocation of his suspended sentence.

¶ 12. Wilson was sentenced to a term of ten years with the last eight years suspended. In imposing Wilson's sentence, the trial judge conditioned the sentence with the specific language "pending your future good behavior ... Do you understand that?" Wilson replied, "Yes, sir." The trial judge also told Wilson "that whenever your get out from serving these sentences, then you'll still have basically eight years hanging over your head, understand that?" Wilson responded, "Yes, sir." The trial judge also advised Wilson, "If you mess up in eight years from the time you get out of Parchman, if you mess up, commit another crime, don't pay this money within ninety days after you are released from Parchman, then you could end up having eight years to actually go back and serve, understand that, what is called a revocation or a taking away of your eight years suspended sentence and having to actually serve out the remainder of the sentence, do you understand that?" (emphasis added). Wilson responded, "Yes, sir." No probationary period was established, and Wilson claimed that he in fact had not been placed on probation. Wilson's probation was unsupervised, and he was not under MDOC control. This Court stated, "Although a probationary period was not described, a...