Wilson v. State, No. 1998-CP-01295-SCT.

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBEFORE PITTMAN, P.J., BANKS AND MILLS, JJ.
Citation735 So.2d 290
PartiesEarl WILSON, Jr. v. STATE of Mississippi.
Docket NumberNo. 1998-CP-01295-SCT.
Decision Date31 March 1999

735 So.2d 290

Earl WILSON, Jr.
v.
STATE of Mississippi

No. 1998-CP-01295-SCT.

Supreme Court of Mississippi.

March 31, 1999.

Rehearing Denied May 27, 1999.


735 So.2d 291
Appellant pro se

Office of the Attorney General by Billy L. Gore, Jackson, Attorney for Appellee.

BEFORE PITTMAN, P.J., BANKS AND MILLS, JJ.

MILLS, Justice, for the Court:

¶ 1. Appellant Earl Wilson, Jr., after being convicted of armed robbery in the Panola County Circuit Court, was sentenced to "ten years in the Mississippi Department of Corrections with the last eight years suspended, pending your future good behavior...." On August 9, 1996, the eight years of suspended sentence was revoked. Wilson filed a motion for post-conviction relief, and on August 13, 1998, the circuit court denied and dismissed with prejudice Wilson's motion. From that order, Wilson appeals alleging the following as error:

I. WHETHER THE TRIAL COURT ERRED BY REIMPOSING THE EIGHT YEARS SUSPENDED SENTENCE.

II. WHETHER THE TRIAL COURT ERRED IN DENYING HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

STATEMENT OF THE FACTS

¶ 2. On April 3, 1991, Earl Wilson, Jr. pled guilty to grand larceny and armed robbery in the Panola County Circuit Court. For the armed robbery charge, Cause No. CR-90-74-C(P2), he was ordered to serve "ten years in the Mississippi Department of Corrections with the last eight years suspended, pending your future good behavior....". On the charge of grand larceny, Cause No CR-89-133-C(P2), Wilson was sentenced to "a term of five years in the Department of Corrections with the last three years suspended, pending your future good behavior....".

¶ 3. Wilson was released from Parchman on March 19, 1993, after serving two concurrent years. On March 26, 1996, the State of Mississippi petitioned the Circuit Court of Panola County to revoke Wilson's armed robbery suspended sentence after he was charged with grand larceny and possession of a firearm by a convicted felon. The Court revoked Wilson's suspended sentence following a hearing on August 9, 1996, and reinstated Wilson's eight-year armed robbery sentence.

I. WHETHER THE TRIAL COURT ERRED BY REIMPOSING THE EIGHT YEARS SUSPENDED SENTENCE.

¶ 4. The lower court labeled the eight years suspended sentence Wilson was given for the armed robbery conviction "unsupervised probation." Wilson disagrees with this label, but argues that if his sentence is deemed "unsupervised probation", the sentence violates Miss.Code Ann. § 47-7-37 which provides:

The period of probation shall be fixed by the court, and may at any time be extended or terminated by the court, or judge in vacation. Such period with any extension thereof shall not exceed five (5) years....

Miss.Code Ann. § 47-7-37 (1972 and Supp. 1998). Wilson believes this violation leaves the State without authority to impose the eight-year sentence. Wilson's sentence was reimposed three years, four months, and twenty-one days after he was discharged on March 19, 1993. The normal course of action when suspending a sentence is to impose a sentence, determine what portion should be suspended then impose a probationary period. Artis v. State, 643 So.2d 533 (Miss.1994). This is not what occurred with Wilson. The record

735 So.2d 292
reveals that no probationary period was ever set for the eight-year suspended sentence on the armed robbery plea. In fact, the court stated the sentence was imposed, "without the benefit of parole or probation."

¶ 5. Wilson argues there was de facto "unsupervised probation". The difference between probation and suspension of sentence has recently been clearly outlined by this Court. We have stated:

Suspension is a term which generally applies to the actions of the State in relation to a prisoner under its supervision and control. If a court suspends a sentence imposed upon an accused, the State cannot enforce such sentence during the suspension period, absent violation by the
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14 practice notes
  • Hughes v. State, No. 97-DP-00028-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • March 31, 1999
    ...v. State, 484 So.2d 339 (Miss.1986), cert. denied Wiley v. Mississippi, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1986); resentencing 735 So.2d 290 ordered, Wiley v. State, 635 So.2d 802 (Miss.1993) following writ of habeas corpus issued pursuant to Wiley v. Puckett, 969 F.2d 86, 105-106......
  • Buice v. State, No. 1998-CA-01156-COA.
    • United States
    • Court of Appeals of Mississippi
    • November 9, 1999
    ...I agree that absent a specific statement in the suspension order, a five-year probation period will normally be implied. Wilson v. State, 735 So.2d 290, 292 (Miss. 1999). Wilson was decided well after Buice's revocation, but I agree that it controls. In Wilson, eight years of a ten year sen......
  • Johnson v. State, No. 98-CP-00663-COA.
    • United States
    • Court of Appeals of Mississippi
    • November 16, 1999
    ...a sentence is to impose a sentence, determine what portion should be suspended then impose a probationary period." Wilson v. State, 735 So.2d 290(¶ 4)(Miss.1999); Artis v. State, 643 So.2d 533 (Miss.1994). In the case sub judice, no probationary period was ever set for the five year suspend......
  • Johnson v. State, No. 2003-CT-00487-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • March 23, 2006
    ...a term which generally applies to the actions of the state in relation to a prisoner under its supervision and control. Wilson v. State, 735 So.2d 290, 292 (Miss.1999) (citing Goss v. State, 721 So.2d 144, 145 (Miss.1998)). Simply stated, "suspension" is the restriction placed upon the powe......
  • Request a trial to view additional results
14 cases
  • Hughes v. State, No. 97-DP-00028-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • March 31, 1999
    ...v. State, 484 So.2d 339 (Miss.1986), cert. denied Wiley v. Mississippi, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1986); resentencing 735 So.2d 290 ordered, Wiley v. State, 635 So.2d 802 (Miss.1993) following writ of habeas corpus issued pursuant to Wiley v. Puckett, 969 F.2d 86, 105-106......
  • Buice v. State, No. 1998-CA-01156-COA.
    • United States
    • Court of Appeals of Mississippi
    • November 9, 1999
    ...I agree that absent a specific statement in the suspension order, a five-year probation period will normally be implied. Wilson v. State, 735 So.2d 290, 292 (Miss. 1999). Wilson was decided well after Buice's revocation, but I agree that it controls. In Wilson, eight years of a ten year sen......
  • Johnson v. State, No. 98-CP-00663-COA.
    • United States
    • Court of Appeals of Mississippi
    • November 16, 1999
    ...a sentence is to impose a sentence, determine what portion should be suspended then impose a probationary period." Wilson v. State, 735 So.2d 290(¶ 4)(Miss.1999); Artis v. State, 643 So.2d 533 (Miss.1994). In the case sub judice, no probationary period was ever set for the five year su......
  • Johnson v. State, No. 2003-CT-00487-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • March 23, 2006
    ...a term which generally applies to the actions of the state in relation to a prisoner under its supervision and control. Wilson v. State, 735 So.2d 290, 292 (Miss.1999) (citing Goss v. State, 721 So.2d 144, 145 (Miss.1998)). Simply stated, "suspension" is the restriction placed upo......
  • Request a trial to view additional results

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