IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CT-00487-SCT
JOHNNY LEE JOHNSON
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 02/21/2003
TRIAL JUDGE: HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT
COURT
ATTORNEY FOR APPELLANT: PRO SE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: CLAIBORNE McDONALD
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: THE JUDGMENT OF THE COURT OF APPEALS
IS AFFIRMED IN PART AND REVERSED IN
PART AND THE JUDGMENT OF THE TRIAL
COURT IS REINSTATED AND AFFIRMED -
03/23/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. We granted certiorari in this case because we are again confronted with certain issues which
have for some time caused both this Court and the Court of Appeals to devote considerable time and
energy in an effort to clarify certain sentencing laws. We attempt through this opinion to once and
for all lay to rest the perplexing issues concerning suspended sentences, supervised probation, and
post-release supervision. While we find the Court of Appeals correctly found Johnson’s sentence (1)
was not vindictive or harsh, (2) was not a denial of due process, and (3) was not disproportionate,
on the other hand, in considering the specific issue before us, we find the Court of Appeals erred in
its modification of the circuit court’s sentence imposed on Johnny Lee Johnson. We thus affirm in
part, and reverse in part, the judgment of the Court of Appeals, and reinstate and affirm the final
judgment of the Circuit Court of Jefferson Davis County.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. We glean from the opinion of the Court of Appeals the facts which are relevant for today’s
discussion:
In 1999, Johnny Johnson was arrested for the sale of 0.1 gram of cocaine. He was
indicted in July 2000. Prior to that indictment, Johnson had been convicted in March
2000, for a different sale of controlled substances. He had been sentenced to fifteen
years, four to serve and eleven years suspended, with the suspension subject to the
rules for post-release supervision.
In February 2003, Johnson was tried for the 1999 drug sale.1 He was convicted and
sentenced to fifteen years imprisonment, with eight years suspended and post-release
1
The record reveals Johnson entered a guilty plea to this charge; therefore, he was not tried
by a jury. At first blush, it would appear that this Court (and the Court of Appeals) would be without
jurisdiction to consider this case on direct appeal, because a defendant has no right to a direct appeal
upon a plea of guilty. Instead, relief is afforded through the Mississippi Uniform Post-Conviction
Collateral Relief Act, codified as Miss. Code Ann. Sections 99-39-1, et seq. See Berry v. State, 722
So.2d 706, 707 (Miss. 1998). However, it is clear that Johnson seeks relief only from the length of
the sentence imposed by the trial judge, and he in no way attacks the guilty plea itself. Thus, both
the Court of Appeals, and now this Court, have jurisdiction to consider, on direct appeal, the issue
of the length of Johnson’s sentence. Bennett v. State, 865 So.2d 1158, 1159 (Miss. 2004) (citing
and distinguishing Trotter v. State, 554 So.2d 313, 315 (Miss. 1989) and Burns v. State, 344 So.2d
1189, 1190 (Miss. 1977)). Additionally, Johnson’s notice of appeal clearly reveals he is appealing
only the sentence imposed, citing Campbell v. State, 743 So.2d 1050, 1052 (Miss. Ct. App. 1999)
and Trotter, 554 So.2d at 315. Finally, the State, in its brief, repeatedly refers to Johnson’s plea of
guilty and sentence, and yet does not attack the jurisdiction of the appellate courts to consider
Johnson’s direct appeal from his sentence. For all of these reasons, we are convinced that we
unquestionably have authority to consider the issue of sentencing on this appeal.
2
supervision for five years. This sentence was consecutive to the one that Johnson
was already serving. Johnson appeals.
Johnson v. State, 2004 WL 1557913, *1 (Miss. Ct. App. 2004). It is thus clear from the record that
after his arrest for the drug sale which is the subject of today’s appeal, but prior to his indictment on
this charge, Johnson was convicted in March, 2000, on an unrelated drug sale. Therefore, by the
time he stood before the sentencing judge on February 21, 2003, Johnson was indeed a prior
convicted felon based on his March, 2000 conviction.
¶3. We set out verbatim portions of Johnson’s sentence as imposed by Circuit Judge R. I.
Prichard, III:
[T]hereupon entering a plea of guilty ... [Johnson] be and he is hereby sentenced to
serve a term of fifteen (15) years in the custody of the Mississippi State Department
of Corrections, with said sentence to run consecutive to the sentence [he] is now
serving.
************
[U]pon successful completion of the service of said seven (7) years, the remaining
eight (8) years of the fifteen (15) year sentence be and the same are hereby suspended
pursuant and in conformity with the Post-Release Supervision set out and authorized
in Section 47-7-34 of the Mississippi Code of 1972, Amended and Annotated.
************
If [Johnson] meets all of the above conditions, then the remaining eight (8) years of
the fifteen (15) year sentence be and the same are hereby suspended and [Johnson]
shall be placed on Post-Release Supervision upon the following terms and conditions
for a period of five (5) years.
************
The violation of any one of the above enumerated conditions shall violate the terms
and conditions of [Johnson’s] Post-Release Supervision and the Court shall have the
authority to revoke the defendant from Post-Release Supervision and remand him
back into the custody of the [MDOC] to serve all of the remaining years left on his
fifteen (15) year sentence.
The practical effect of the sentence which Judge Prichard imposed upon Johnson was that (1) upon
completion of the sentence Johnson was serving at the time of the imposition of the sentence under
review, Johnson would serve seven years of incarceration; (2) upon release from MDOC custody,
3
Johnson would serve the remaining eight years of his fifteen-year sentence on post-release
supervision pursuant to the provisions of Miss. Code Ann. Section 47-7-34; (3) five years of
Johnson’s eight-year post-release supervision sentence would be served under MDOC supervision
pursuant to the terms and conditions provided by Miss. Code Ann. Section 47-7-35; (4) the
remaining three years of Johnson’s eight-year post-release supervision sentence would be served as
“non-reporting,” meaning that while Johnson would not be under MDOC supervision by reporting
to a MDOC probation officer, Johnson would still be required to remain on “good behavior,” such
as not committing another crime, not owning, carrying, or concealing a firearm, and not using or
possessing illegal drugs; and, (5) if Johnson violated any of the terms of his post-release supervision
during this eight-year period, the court would have authority to terminate any part of, or all of, his
eight-year post-release supervision, and sentence Johnson to serve a term of up to eight years in the
custody of the Mississippi Department of Corrections, pursuant to the provisions of Miss. Code Ann.
Section 47-7-34(2).
PROCEEDINGS IN THE COURT OF APPEALS
¶4. Before the Court of Appeals, Johnson attacked only his sentence, arguing that (1) the
sentence was vindictive and harsh;2 (2) the imposition of a sentence which ran consecutive to his
previously imposed sentence was a denial of due process; and, (3) the sentence was disproportionate
and thus in violation of the Eighth Amendment to the United States Constitution, and the sentence
2
This argument by Johnson is intriguing, inasmuch as Johnson stood before Judge Prichard
at a time when he was indicted for three drug sales, and it is only because the State chose (1) to nolle
prosequi two of the three indictments, and (2) not to charge Johnson as a second or subsequent
offender pursuant to Miss. Code Ann. Section 41-29-147, that Johnson was able to avoid the
possibility of facing sentences totaling one hundred eighty (180) years of incarceration. See also
Miss. Code Ann. § 41-29-139(b)(1).
4
was also illegal since, as a prior convicted felon, Johnson could not receive a suspended sentence.
The Court of Appeals found Johnson’s assignments of error to be without merit, with one exception.
The Court of Appeals found the circuit judge erred in suspending a portion of Johnson’s sentence
since, at the time of sentencing, Johnson was a convicted felon.
¶5. In relying on two of its prior cases, Hunt v. State, 874 So.2d 448 (Miss. Ct. App. 2004) and
Gaston v. State, 817 So.2d 613 (Miss. Ct. App. 2002), the Court of Appeals stated:
A section 47-7-34 sentence requires a “specific term of incarceration, no suspended
sentence or ‘probation,’ and a specific term of post-release supervision of up to five
years after incarceration, provided that the total of the two terms does not exceed the
maximum sentence for the crime.” [Hunt, 874 So.2d] at 456. Post-release
supervision might be seen as a merger of the purposes of suspension and probation,
since the term of supervision must come out of the unserved portion of the maximum
prison term for the offense.
Johnson, 2004 WL 1557913, *2, ¶ 8. The Court of Appeals, after analyzing the provisions of Miss.
Code Ann. Sections 47-7-33, -34, concluded:
Johnson had eight years of a fifteen year sentence suspended. As noted above, since
the statute that permits post-release supervision does not contain language
authorizing suspending sentences, and another statute bars suspension of sentences
to prior felons, no suspension should be given. However, there is no practical
difference between what the trial judge did and what he should have done, which
would have been to sentence Johnson to a seven year term of incarceration and a five
year term of post-release supervision. We modify the sentence only to the extent that
we remove as surplusage the giving of a fifteen year sentence with eight years
suspended. In all other respects the sentence is affirmed, such that Johnson is to serve
a term of incarceration of seven years in the custody of the Mississippi Department
of Corrections, and then has a five year term of post-release supervision under the
provisions of section 47-7-34.
The Supreme Court has recently even suggested that there may be two different
modes in which post-release supervision can be served. One is under the supervision
of the Mississippi Department of Corrections, limited to five years. The statute may
also permit unsupervised post-release supervision for additional periods so long as
the total of the term to serve, the term of supervised supervision, and the term of
unsupervised supervision does not exceed the maximum sentence for the offense.
5
Miller v. State, 875 So.2d 194, 199 (Miss. 2004), interpreting Miss. Code Ann. § 47-
7-34(3) (Supp. 2003). In Miller that conclusion was dicta. Later decisions are
needed to make the interpretation of post-release supervision more certain.
Id at **2-3, ¶¶ 9-10.
¶6. In the end, the Court of Appeals modified the circuit court sentence to remove the eight-year
suspended sentence, replacing that portion of the sentence with five years of post-release
supervision.3 Thus, while the net result of the Court of Appeals’ modified sentence was that Johnson
was still required to serve seven years in the custody of the MDOC, Johnson’s term of post-release
supervision was reduced from eight years to five years. The Court of Appeals likewise opined that
our holding in Miller v. State, 875 So.2d 194 (Miss. 2004), would “ultimately require adjustments”
in what the Court of Appeals had “announced in its precedents,” concluding that “[t]he certiorari
process in this case is available.” Id. at *3, ¶ 11. Having granted the State’s petition for writ of
certiorari, we now accept the invitation extended by the Court of Appeals to once again address the
statutory creatures known as suspended sentences, supervised probation, and post-release
supervision.
3
Although the Court of Appeals did not have the benefit of our later decision in Sweat v.
State, 912 So.2d 458, 460-61 (Miss. 2005), it still quite appropriately followed the correct procedure
in attempting to modify what it perceived to be an illegal or improper sentence, without the necessity
of remanding the case solely for the purpose of resentencing. Thus, while we agree that the Court
of Appeals followed the correct procedure, that Court, as will be discussed, infra, erroneously
modified a legal sentence imposed by the circuit judge.
6
DISCUSSION
¶7. In considering the State’s cert petition, we deem it necessary to address today only one issue.
WHETHER THE CIRCUIT COURT IMPOSED AN ILLEGAL
SENTENCE, OR A SENTENCE WHICH REQUIRED
APPELLATE COURT MODIFICATION.
¶8. As already aptly noted, we are again confronted with the ever-present sentencing problem
that occurs when a prior convicted felon is given a split sentence of incarceration followed by
MDOC supervision, whether it be classified as post-release supervision, or supervised probation.
Likewise, problems seem to arise when the term “suspended” or “suspended sentence” appears
anywhere in the sentencing order. The difficulty that has arisen from this otherwise typical exercise
of judicial discretion stems from long-standing confusion as to how a “suspended sentence” works
in concert with a statutory period of “supervised probation,” as codified under Miss. Code Ann.
Section 47-7-33, or “post-release supervision,” as codified under Miss. Code Ann. Section 47-7-34.
As will be discussed, this Court has done its part in lending to this confusion. Accordingly, today
we must revisit Sections 47-7-33, -34 and examine the verbiage and vernacular common to these
sections as well as the case law interpreting them. Clearly, there is a need to reconcile this area of
our sentencing laws, and paint a clear picture of how the provisions of Section 47-7-33 were
intended to accomplish the same purpose as the provisions found in Section 47-7-34. Today’s
clarification is important to our appellate review, as many sentences which have been found by their
very “lingo” to be “illegal” are by their application exactly what our sentencing statutes actually
allow. However, today’s clarification of our sentencing statutes are of equal importance to the trial
bench and bar. Thus, it is essential that we harmonize our reading of these two statutes, because
based on the current status of our case law coming from both this Court and the Court of Appeals,
7
we will otherwise continue to engender unnecessary appellate review of what are otherwise legally
imposed sentences by our circuit and county judges.
A. Miss. Code Ann. § 47-7-33:
¶9. We begin our analysis by outlining the confusion that has arisen in our jurisprudence
regarding a judge’s authority to suspend a sentence, or to suspend a sentence and place a defendant
on supervised probation. While our statute intimates that “suspending the imposition or execution
of a sentence” and “placing a defendant on probation” are bred from the same legislative grace, it
is clear that these sentencing mechanisms are distinguishable and serve discrete functions carried out
by different branches of our state government. Importantly, these two sentencing tools can be used
by a trial judge either separately or together.
¶10. By definition, a “suspended sentence” is a unique mechanism by which the court may
postpone the imposition of a sentence altogether or delay the execution of a sentence once it has been
pronounced. 21A Am. Jur. 2d, Criminal Law § 895 p.163. Suspension is 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 power of the State to act during that
(the suspended portion of a sentence) period. Id.
¶11. Quite differently, probation restricts the prisoner’s rights rather than those of the State. Goss,
721 So.2d at 146. If a prisoner is under court imposed probation, that prisoner may be incarcerated
if the conditions of probation are not followed.4 Id. Probation is a matter of grace and a conditional
4
In Georgia, ...suspension and probation are twin animals, similar but
distinct. Both are mechanisms by which a sentencing court may
8
liberty that is a favor, not a right or entitlement. 21A Am. Jur. 2d, Criminal Law § 904 p.169.
Moreover, probation is a sentence and not part of a quasi-contract wherein the court offers something
which the defendant is free to accept or reject. Id. Probation is to be considered at the time of
sentencing, and it starts with the process of probation or conditional discharge, moving toward
imprisonment only if certain justifications exist to deny probation or conditional discharge. Id. at
168.
¶12. Generally, the law distinguishes the suspension of a sentence from probation. Moreover,
while both probation and the suspension of sentence involve the trial court’s discretionary and
conditional release of a convict from the service of a sentence within the penal system, a
probationary sentence is served under the supervision of probation officers, whereas a suspended
sentence is served without such supervision, but on such legal terms and conditions as are required
by the sentencing judge.5 Id. at 169. Moreover, a straight suspended sentence is not subject to the
excuse a defendant from prison time. See O.C.G.A. § 17-10-1(a)(1)
(Lexis Supp.2000) (“The judge imposing the sentence is granted
power and authority to suspend or probate all or any part of the entire
sentence....”) Both may be directly imposed subject to conditions
whose violation may result in incarceration. See id. § 17-10-1(c)
(permitting the court, for instance, to require completion of high
school diploma equivalent as condition of suspension); O.C.G.A. §
42-8-34.1 (Michie 1997) (procedures for revocation of “probated or
suspended sentence”). But suspended and probated sentences are
administered differently; a probation officer monitors compliance
with probation conditions, while the sentencing court is responsible
for enforcing conditions of suspension. Williams v. State, 191 Ga.
App. 217, 381 S.E.2d 399, 400 (1989).
U.S. v. Ayala-Gomez, 255 F.3d 1314, 1318 (11th Cir. 2001).
5
See infra. “Unsupervised probation” is the functional equivalent to “a straight suspended
sentence” to the extent that the sentence is not under the supervision of the Department of
9
conglomeration of rules that can be attached to a sentencing order granting probation. In expounding
on the reasoning in Goss v. State, 721 So.2d 144 (Miss. 1998), Justice Mills, who was the author of
this Court’s opinion in Goss, made it clear in his dissenting opinion in Carter v. State, 754 So.2d
1207 (Miss. 2000), that suspending a sentence and granting probation are not interchangeable
mechanisms, and he further opined that defining them as such would be in obvious derogation of the
plain meaning of the words:
Under probation the court releases the defendant into the community under the
supervision of a probation officer. The defendant’s freedom after conviction is
subject to the condition that for a stipulated period of time he shall conduct himself
in a manner approved by a special officer to whom he must make periodic reports.
Black's Law Dictionary, 1082 (5th ed. 1979). A suspended sentence is one that is
given formally but not actually served. The defendant is not required, at the time the
sentence is imposed, to actually serve the sentence. This suspension is contingent
upon the good behavior of the defendant. Id. at 1223, 1297. Under a suspended
sentence the defendant is not required to report to an officer as he is while on
probation. However, the trial court does possess the power to revoke the suspended
sentence.
Clearly, the obligations, duties and expectations of the defendant on probation are
distinct from a defendant's responsibilities while “serving” a suspended sentence.
Furthermore, a trial court may impose a suspended sentence for a term up to the
maximum sentence allowed by law. Under Mississippi law, a trial court may only
impose probation for a maximum of five (5) years. Miss. Code Ann. § 47-7-37
(Supp. 1999).... A suspension of a sentence does not automatically mean that the
defendant will be on probation and under a duty to report to a probation officer. It
simply means that part of his entire sentence has been postponed pending the
defendant’s good behavior or such other conditions as the court may see fit to
establish.
Corrections, but under the watchful eye of the sentencing judge. Therefore, when we endorse
“unsupervised probation” or “non-reporting post-release supervision” under Miss. Code Ann.
Section 47-7-34, we are merely sanctioning a straight suspended sentence under Miss. Code Ann.
Section 47-7-33(1). In Wilson v. State, 735 So.2d 290 (Miss. 1999), this Court stated that “[t]he
Goss reasoning should not be expanded beyond its facts since other statutes exist which allow for
suspended sentences, lengthy probationary periods, and other sentencing options.” Wilson, 735
So.2d at 292. We agree but now stress that for the sake of the trial bench and bar we should not
endorse a sentencing mechanism under one statute while castigating it under another.
10
Carter, 754 So.2d at 1210-11 (Mills, J., dissenting).
¶13. One need go no further than the Mississippi Code to clearly see the distinct nature of
probation versus that of a suspended sentence. For example, Miss. Code Ann. Section 99-19-29,
which is entitled “Vacation of suspended sentence and annulment of conditional pardon for violation
of terms,” clearly evinces the distinct nature of a judge’s discretionary power to suspend a sentence:
Whenever any court granting a suspended sentence, or the governor granting a
pardon, based on conditions which the offender has violated or failed to observe,
shall be convinced by proper showing, of such violation of sentence or pardon, then
the governor or the judge of the court granting such suspension of sentence shall be
authorized to annul and vacate such suspended sentence or conditional pardon in
vacation or court time. The convicted offender shall thereafter be subject to arrest
and court sentence service, as if no suspended sentence or conditional pardon had
been granted, and shall be required to serve the full term of the original sentence that
has not been served. The offender shall be subject, after such action by the court or
the governor, to arrest and return to proper authorities as in the case with ordinary
escaped prisoner.
Miss. Code Ann. § 99-19-29.
¶14. Additionally, Miss. Code Ann. Section 99-19-21, which is entitled “Sentence; prison terms
to run consecutively or concurrently in discretion of court; sentence for felony committed while on
parole, probation, earned-release or post-release supervision, or suspended sentence,” clearly
indicates our legislature’s intent that a suspended sentence be considered its own statutory creature.
This is further confirmed by simply reading subsection two of the statute:
When a person is sentenced to imprisonment for a felony committed while the person
was on parole, probation, earned-release supervision, post-release supervision or
suspended sentence, the imprisonment shall commence at the termination of the
imprisonment for the preceding conviction. The term of imprisonment for a felony
committed during parole, probation, earned-release supervision, post-release
supervision or suspended sentence shall not run concurrently with any preceding
term of imprisonment. If the person is not imprisoned in a penitentiary for the
preceding conviction, he shall be placed immediately in the custody of the
11
Department of Corrections to serve the term of imprisonment for the felony
committed while on parole, probation, earned-release supervision, post-release
supervision or suspended sentence.
Miss. Code Ann. § 99-19-21(2) (emphasis added).
¶15. While the two sentencing tools must indeed be considered distinct, if a judge chooses to
employ Section 47-7-33 by both suspending a sentence and imposing probation, then the differing
mechanisms work together in concert. Accordingly, they create a unified probationary mechanism
which conditions the judge’s grant of leniency by way of probation on pain of revocation of the
probationer’s suspended or probationary sentence, if the probationer should fail to exhibit conduct
in a manner as directed by the sentencing judge and/or as approved by the probation officer. Under
Mississippi jurisprudence, there also exists a hybrid of a straight suspended sentence and straight
probation, which is specifically contemplated via the conjunctive “and” in the text of Miss. Code
Ann. Section 47-7-33(1), which states in pertinent part:
[S]uch court, in termtime or in vacation, shall have the power, after conviction or a
plea of guilty, except in a case where a death sentence or life imprisonment is the
maximum penalty which may be imposed or where the defendant has been convicted
of a felony on a previous occasion in any court or courts of the United States and of
any state or territories thereof, to suspend the imposition or execution of sentence,
and place the defendant on probation as herein provided, except that the court shall
not suspend the execution of a sentence of imprisonment after the defendant shall
have begun to serve such sentence. In placing any defendant on probation, the court,
or judge, shall direct that such defendant be under the supervision of the Department
of Corrections.
Miss. Code Ann. § 47-7-33(1) (emphasis added).
¶16. Although somewhat disjointed, our precedent evidences recognition of each of these
sentencing practices. Moreover, our prior decisions on today’s issue, which were notably sparse
before 1991, bear out our sentencing tradition. In Jackson v. Waller, 248 Miss. 166, 160 So.2d 184
12
(1964), this Court’s opinion provides the background to Section 47-7-33 (then Section 4004-23 of
the 1942 Code) by examining the state of sentencing at the time the 1956 Probation Act was passed.
Moreover, our decision in Jackson distinguishes probation, to be governed by the Probation and
Parole Board, from summary suspension, codified in 1950:
The 1956 Probation Act created a system of adult probation for first offenders only.
The circuit and county courts were granted the power to suspend the imposition or
execution of sentences, and place a defendant on probation. In doing so the court is
required to direct that he be under the supervision of the Probation and Parole Board.
§ 4004-23. The court determines the terms and conditions for probation, some of the
permissible ones being itemized. § 4004-24. Its period may be extended or
terminated by the court, but under section 4004-25 it ‘shall not exceed five years.’
This was the limitation in the Probation Act which our original opinion applied to
summary suspensions of misdemeanor sentences under Code section 2541.
After careful consideration, we conclude it was error to hold that the provisions of
the Probation Act are in pari materia with section 2541, section 4004-25 limits the
period of probation under section 2541, and convicts under suspension of sentence
for misdemeanors (§ 2541) come under the supervision of the Probation and Parole
Board.
The Probation and Parole Act of 1956 does not evidence any intention, we think, to
extend the supervisory powers of the board to misdemeanants. §§ 4004-23 to 4004-
27. It did not repeal or refer in any way to the summary suspension act, section 2541.
There appears no intent to repeal by implication the old summary suspension
procedure. The 1950 Parole Act applied only to felonies, and the probation sections
were added in 1956 as amendments to the 1950 act. Nowhere in the 1956 statute is
any reference made to misdemeanors. The only descriptive statements are to those
serving sentences in the state penitentiary, which necessarily pertain to felonies. The
total number of employees of the Probation and Parole Board is fixed at fifteen. If
the legislature had any intention to provide supervision by probation officers of all
misdemeanants whose sentences have been suspended under section 2541, it
certainly would not have limited the total number of board employees to fifteen.
Code § 4004-05.
Jackson, 160 So.2d at 185.6
6
See also State of Washington v. Davis, 56 Wash.2d 729, 355 P.2d 344 (1960), a case with
a parallel question to the one presented by Jackson. As stated by the Washington Supreme Court:
13
¶17. The Probation Act and the code sections included therein are exclusively about probation.
Moreover, it specifically tasks the Probation and Parole Board with the administration of the
Probation Act. Importantly, our decision in Jackson spares the Probation and Parole Board from
responsibility for both probation and summary suspension, and ultimately recognizes a trial judge’s
discretion in regards to the latter. “Power to suspend sentences under section 2541 [Miss. Code Ann.
§ 99-19-25] is restricted to a reasonable time, which is within the sound judicial discretion of the trial
court.” Id. at 186.
¶18. A coordinate result of the Probation Act was to expand a criminal court’s ability to suspend
sentences (then codified section § 2541, now Miss. Code Ann. § 99-19-25) by allowing it to suspend
felony sentences. This result was recognized by this Court in 1978 in McDaniel v. State, 356 So.2d
1151 (Miss. 1978).
[T]he only statutory authority for suspension of sentences was section 99-19-25
Mississippi Code Annotated (1972) (then Section 1298 Mississippi Code of 1930)
which authorized the circuit and county courts to suspend sentences in misdemeanor
cases only. The “probation and Parole Law” was amended by Chapter 262
Mississippi General Laws 1956, and in sections 10 and 11 the statutory authority of
circuit and county courts to suspend sentences was extended to include felonies.
This appeal highlights the distinction between a suspended sentence under RCW
9.92.060, which we will refer to as the Suspended Sentence Act, and under the
provisions made in the Prison Terms, Paroles and Probation Act, which we will refer
to herein as the Probation Act (RCW 9.95.200 through 9.95.250).
Generally speaking, our superior courts use the former when they desire to suspend
the execution of a sentence during the good behavior of a convicted person, and the
latter when they desire to defer the imposition of a sentence, with a view to an
ultimate dismissal of the charges if the behavior of the convicted person warrants
such action. However, the latter is available and is used in many instances for the
suspension of the execution of a sentence.
Davis, 56 Wash.2d at 730, 355 P.2d at 344-45.
14
Before 1956 the circuit and county courts had no statutory authority to suspend
sentences in felony cases.
McDaniel, 356 So.2d at 1159 (Sugg, J., Special Concurrence). Thus, the language that has become
the subject of today’s appeal, “to suspend the imposition or execution of sentence,” which was
distinguished as language belonging to the Probation Act and as not being “in pari materia” with the
summary suspension act, nonetheless became inextricably bound to the judicial concept of
suspending a sentence.
¶19. Two years prior to McDaniel, this Court handed down Hamlin v. Barrett, 335 So.2d 898
(Miss. 1976), and reiterated the Court’s reading of the Probation Act as stated in Jackson. In
Hamlin, this Court was introduced for the first time to the counterintuitive (and now ever-present)
argument in which a convicted felon asserts that his probation was illegally granted due to his prior
convicted felon status at the time of sentencing. Hamlin was ordered to serve three years in the
penitentiary for forgery. Id. at 899. The sentence was then suspended, and the court granted
probation; however, later the suspension and probation were revoked, and thus Hamlin presented
the aforementioned argument. Id. In upholding the original sentence of the trial court, this Court
specifically held that the circuit court had jurisdiction even though the grant of probation was on the
other hand “technically inappropriate.” Id. Referencing the circuit court judge’s decision, this Court
reasoned that in effect the circuit court judge found that the prosecutor was not aware of Hamlin’s
prior conviction until after the plea of guilty was made and the probationary sentence meted out.
Id. In sum, we ultimately stated that “[t]his case makes it clear and we stress that before granting
probation to defendants convicted of crimes trial judges, prosecutors, and defense counsel must
exercise care to see that probation is proper under § 47-7-33, supra.” Id. at 900.
15
¶20. Fifteen years later this Court considered a case similar to Hamlin. In Robinson v. State, 585
So.2d 757 (Miss. 1991), a prior convicted felon was sentenced to a suspended sentence and
supervised probation, and this Court attributed new meaning to Section 47-7-33 by including the
suspension-of-sentence language into the statute’s restriction on allowing probation to a convicted
felon. In Robinson, the defendant (Robinson), during a regular term of court in Tishomingo County,
was sentenced to three years in the custody of the MDOC. Robinson, 585 So.2d at 758. In
accordance with the provisions of Section 47-7-33, the trial judge suspended the sentence and placed
Robinson on supervised probation. Id. However, within three days of sentencing, Robinson was
arrested a second time on a similar charge, and was brought before the same circuit court judge
during the same term of court in which Robinson received his original sentence, and the judge set
aside the originally imposed suspended sentence and ordered Robinson to serve the three year term
in prison. Id.7 On appeal of the circuit court’s denial of Robinson’s motion for post-conviction
7
Although the end result was the same, the circuit judge in Robinson did not “revoke” the
suspended sentence, but instead properly “set aside” the first judgment which provided for a
suspended sentence, and entered a second judgment directing that Robinson serve the three-year
sentence, not under suspension, but by way of incarceration. As this Court noted in Robinson:
[T]he second sentence was imposed during the same court term as the first sentence.
Jones v. Index Drilling Co., 251 Miss. 578, 170 So.2d 564, 571 (1965). This Court,
citing Bronson v. Schulten, 104 U.S. (14 Otto) 410, 26 L.Ed. 797 (1882), stated the
general rule:
... all the judgments, decrees, or other orders of the courts, however
conclusive in their character, are under the control of the court which
pronounces them during the term at which they are rendered or
entered of record, and they may be set aside, vacated, modified or
annulled by that court. (emphasis supplied).
Jones, 170 So.2d at 571.
16
relief, this Court found that unlike the prosecutor and the circuit judge in Hamlin, who had no
knowledge of the defendant’s prior New York conviction, which the defendant had concealed from
the court, the prosecutor and the circuit judge in Robinson were very much aware of Robinson’s
prior conviction, because during the plea colloquy, when asked by the circuit judge if he had any
prior felony convictions, Robinson responded in the affirmative by acknowledging that he had a
grand larceny conviction in Alcorn County. Thus, in Robinson, this Court reversed the circuit
court’s denial of Robinson’s PCR motion, finding that Section 47-7-33 did not provide for a
convicted felon to receive “suspension of sentence and probation,” and that Robinson should
therefore be permitted to withdraw his guilty plea and enter a new plea, and that Robinson should
be given the opportunity for a trial if he chose to offer a not guilty plea. To emphasize our holding
in Robinson:
Clearly, § 47-7-33 does not permit suspension of sentence and probation to a
defendant with a prior felony conviction. Robinson’s suspended sentence and
probation was without authority and, therefore, invalid. Because Robinson plead
guilty on the improper inducement that he was eligible for a suspended sentence or
probation, he is therefore permitted to withdraw his guilty plea and he must be
allowed to enter a new plea and offered the opportunity of a new trial. Vittitoe v.
State, 556 So.2d 1062, 1065 (Miss. 1990). Accordingly, we reverse the judgment
below and restore Robinson’s plea of not guilty to the indictment for possession of
more than one ounce and less than one kilogram of marijuana and remand for such
further appropriate proceedings.
Robinson, 585 So.2d at 759 (emphasis added). While the end result reached by this Court in
Robinson was correct, the road we traveled to get to our final destination was more than a little
bumpy. Some of the language we used in Robinson in our interpretation of Section 47-7-33 is the
very reason we write today.
Robinson, 585 So.2d at 758.
17
¶21. Our holding in Robinson was galvanized by this Court seven years later with our decision
in Goss v. State, 721 So.2d 144 (Miss. 1998), a case responsible for perpetuating the interpretation
accorded to Section 47-7-33 for the last eight years. In Goss, we again dealt with the sentencing of
a prior convicted felon. The trial court imposed a sentence on Goss of “ten years in the Mississippi
Department of Corrections, with seven years to serve and three years suspended for a five-year
period.” Id. at 145. Perhaps the facts in Goss exhibited the truth in the old adage that “bad facts
make bad law.” Goss was sentenced for burglary of an uninhabited dwelling under then-existing
Miss. Code Ann. Section 97-17-27,8 for which the maximum penalty was ten years’ imprisonment.
The major problem created by the trial judge’s sentence in Goss was that the sentence conceivably
created a possibility of Goss serving fifteen years imprisonment, which was beyond the statutory
maximum penalty, especially if his suspended sentence was later revoked. In addressing Goss’s
sentence, this Court stated, inter alia:
Although the total number of years to which Goss was sentenced does not technically
exceed the statutory maximum of ten years, and the suspension period does not
exceed the statutory maximum of five years, we nevertheless find that the trial court
erred in fashioning a sentence which could result in a fifteen year time span during
which Goss is under the direct supervision of the State. Therefore, the sentence in
its totality violates the limits imposed by the statutes and offends the intent of the
legislature in restricting the duration of punishment imposed by the courts.
8
Miss. Code Ann. Section 97-17-23 (Rev. 2000) now provides for penitentiary imprisonment
of not less than three years, nor more than twenty-five years, for burglary of a dwelling, regardless
of whether the burglar is armed with a deadly weapon, whether the dwelling is inhabited or not, and
whether the burglary occurred during the daytime or nighttime. At the time of Goss’s sentence, the
various statutes provided for different penalties for such crimes as burglary of an inhabited dwelling,
burglary of an uninhabited dwelling, and nighttime burglary of an inhabited dwelling with a deadly
weapon. Goss was convicted of burglary of an uninhabited dwelling pursuant to Miss. Code Ann.
Section 97-17-27, which carried a maximum penalty of imprisonment in the penitentiary for a period
not to exceed ten years.
18
Id.
¶22. Further, in review of Goss’s sentence, this Court turned to precedent and sought once again
to decipher the meaning of Section 47-7-33, in accordance with our interpretation of Section 47-7-33
in Robinson. In so doing, we focused on Robinson’s incorporation of the “suspended sentence”
language into its holding and for the first time since the promulgation of the Probation Act in 1956,
interpreted Section 47-7-33 in such a way as to forbid our trial courts from imposing a suspended
sentence upon a prior convicted felon.9 In Goss, we relied on Robinson and stated:
In Robinson, we held the trial court suspended the defendant's sentence in violation
of § 47-7-33 due to the defendant's prior felony conviction. Robinson, 585 So.2d at
759. The uncertainty in the instant case stems from the distinguishable fact that only
part of Goss’s sentence was suspended by the lower court rather than the entire
sentence as in Robinson. We find that the wording of the statute not only restricts
the courts’ ability to place defendants with prior felony convictions on probation, but
it also restricts their ability to wholly or partially suspend the sentence of a
previously convicted felon. Therefore, the lower court erred in sentencing Goss, a
convicted felon, to serve seven years in the state penitentiary followed by a
conditional three year suspended sentence. Goss is simply not entitled to a
suspended sentence in light of his prior conviction.
Id. at 146 (emphasis added).
¶23. The unquestionable flaw in Goss is that it expanded the limiting language of Section 47-7-33,
which applies to convicted felons, by replacing the specific language provided for by the Probation
Act, which specifically limits a judges’ ability to suspend a sentence and place a convicted felon on
probation, with language that prevents judges from placing a convicted felon on probation or
suspending the sentence. This new interpretation in Goss changed the landscape of sentencing under
9
In Goss, this Court acknowledged the legislative enactment of Miss. Code Ann. Section 47-
7-34, but found the statute to be inapplicable since Goss’s crime was committed prior to the effective
date of Section 47-7-34.
19
Section 47-7-33 by prohibiting trial judges not only from imposing supervised probation on a
convicted felon, but also from suspending a convicted felon’s sentence, in whole or in part. We now
find that Goss’s interpretation of this statute was error. If the legislature had intended for the prior
felony exception to apply to both instances where a judge is considering imposition of a ‘straight’
suspended sentence versus supervised probation, the legislature would have used the disjunctive ‘or’
to assure that the prior felony exception applied in both sentencing situations. Importantly, the
legislature opted for the conjunctive “and”, as opposed to “or”, which evidences the legislature’s
intent that the prior convicted felon exception apply only when the sentencing judge seeks to suspend
the imposition or execution of a sentence “and” place the defendant on probation under MDOC
supervision.
¶24. We again state for the sake of emphasis that suspending a sentence and imposing probation
are distinct events; however, since the advent of Goss, appellate review under Section 47-7-33 has
treated suspended sentences and probation as interchangeable sentencing mechanisms born of the
same legislative act. In today’s case, we are faced with a decision rendered by the Court of Appeals
in which that Court has focused on the specific language of Section 47-7-33 and interpreted it to
preclude a trial judge from suspending any part of a convicted felon’s sentence. If today’s case was
outcome determinative solely on Section 47-7-33 and Goss, this Court’s interpretation of Section
47-7-33 might be similarly restricted. However, since the legislature’s enactment of Miss. Code
Ann. Section 47-7-34 in 1995, we have been given the wherewithal to return sentencing discretion
back to our trial judges. Moreover, in its enactment of Section 47-7-34 and the incorporation of a
new section in the Probation Act, the legislature expressly answered any question of statutory
20
interpretation associated with the wording of Miss. Code Ann. Section 47-7-33(1).10 Ultimately, by
promulgating Section 47-7-34, the legislature created a mechanism by which it could return the once
clear authority for criminal courts to sentence beyond the strict confines of either incarceration or
supervised probation and thus have returned to those courts, that which had at least been temporarily
taken away from them by Goss.
B. Miss. Code Ann. § 47-7-34:
¶25. With the passage of the legislation that created the Post-Release Supervision Program, the
legislature expressly restored the trial court’s sentencing authority. Moreover, the sentencing
mechanism set forth in Miss. Code Ann. Section 47-7-34 provides this Court with the statutory
impetus to uphold substantively proper sentencing, which might otherwise have been struck down
as “illegal” under Miss. Code Ann. Section 47-7-33(1). Miss. Code Ann. Section 47-7-34 states:
(1) When a court imposes a sentence upon a conviction for any felony committed
after June 30, 1995, the court, in addition to any other punishment imposed if the
other punishment includes a term of incarceration in a state or local correctional
facility, may impose a term of post-release supervision. However, the total number
of years of incarceration plus the total number of years of post-release supervision
shall not exceed the maximum sentence authorized to be imposed by law for the
felony committed. The defendant shall be placed under post-release supervision
upon release from the term of incarceration. The period of supervision shall be
established by the court.
(2) The period of post-release supervision shall be conducted in the same manner as
a like period of supervised probation, including a requirement that the defendant
shall abide by any terms and conditions as the court may establish. Failure to
successfully abide by the terms and conditions shall be grounds to terminate the
period of post-release supervision and to recommit the defendant to the correctional
10
It is not beyond the realm of possibility that the Legislature’s enactment of Miss. Code Ann.
Section 47-7-34 may have been in direct response to this Court’s treatment of Miss. Code Ann.
Section 47-7-33, although, admittedly, our decision in Goss was still three years in the making at
the time of the enactment of Section 47-7-34.
21
facility from which he was previously released. Procedures for termination and
recommitment shall be conducted in the same manner as procedures for the
revocation of probation and imposition of a suspended sentence.
(3) Post-release supervision programs shall be operated through the probation and
parole unit of the Division of Community Corrections of the department. The
maximum amount of time that the Mississippi Department of Corrections may
supervise an offender on the post-release supervision program is five (5) years.
Miss. Code Ann. § 47-7-34 (emphasis added).
¶26. In Miller v. State, 875 So.2d 194 (Miss. 2004), this Court assessed the legislature’s actions
and noted the differences between the post-release supervision program codified under Section 47-7-
34, and supervised probation as delineated under Section 47-7-33. Moreover, we recognized the
legislature’s express intent to return to the trial judges the sentencing discretion they had enjoyed
under Section 47-7-33 in years past. Miller likewise acknowledged the distinct differences between
Section 47-7-33 and 47-7-34. In Miller, the defendant was convicted of arson and sentenced to a
one year term in the custody of the Mississippi Department of Corrections followed by a ten year
term of supervised probation. Miller, 875 So.2d at 196. On appeal, the Court of Appeals affirmed
the conviction but reversed and remanded for the limited purpose of correcting the sentencing terms.
Id. On writ of certiorari, we affirmed the sentence as imposed by the trial court and held that the trial
court was authorized by the applicable statutes to sentence the defendant to one year in the custody
of MDOC, followed by ten years of probation, but limited by the five year maximum for MDOC
supervision.11 In so holding, we extrapolated the proper sentence from the trial judge’s clear
11
The exact sentence imposed by the trial judge was “one (1) year in the [MDOC] followed
by supervised probation under the supervision of the [MDOC] for a period of ten (10) years or until
the court in term time or the Judge in vacation shall alter, extend, terminate or direct the execution
of the above sentence.” Miller, 875 So.2d at 199.
22
sentencing intentions and the new directives provided by Miss. Code Ann. Section 47-7-34.
Accordingly, we stated:
Thus it is clear that the trial judge was placing Miller on probation, but only five (5)
years of which would be served under the supervision of the MDOC with the
remaining five years being in essence “unsupervised probation.” There is no doubt
that Miller could not be required to serve more than five years by way of reporting
to a MDOC probation officer (supervised probation), but upon release from the
reporting requirements by the MDOC officer and/or the trial court, Miller no doubt
could serve the remainder of his sentence by way of unsupervised probation. The
sentence was not violative of Sections 47-7-33, 47-7-34 or 47-7-37.
Id. at 200.
¶27. Therefore, in reviewing the trial judge’s sentence, we simply recognized the limitations of
Section 47-7-33 as defined by Goss and addressed our sentencing statutes according to the express
statutory directives provided by Miss. Code Ann. Section 47-7-34:
Supervised probation and post-release supervision are totally different statutory
creatures. Miss. Code Ann. § 47-7-33 provides for supervised probation, while Miss.
Code Ann. § 47-7-34 provides for post-release supervision. At least two major
differences in these two statutes are (1) supervised probation may not be imposed on
a convicted felon while post-release supervision may be imposed on a convicted
felon; and, (2) supervised probation is limited to five years while post-release
supervision is not. Section 47-7-34 states inter alia that “the total number of years of
incarceration plus the total number of years of post-release supervision shall not
exceed the maximum sentence authorized to be imposed by law for the felony
committed.” While the statute unquestionably limits to five years the period of time
that the MDOC may supervise an offender who is on post-release supervision, the
clear language of the statute does not limit the total number of years of post-release
supervision to five years.
Id. at 199 (emphasis added).
¶28. In 2005, we applied Miller’s pronouncement to a case dealing with facts similar to today’s
case. In Sweat v. State, 912 So.2d 458 (Miss. 2005), the defendant, a prior convicted felon, pled
guilty to conspiracy to manufacture methamphetamine and was sentenced to twenty years in the
23
custody of the MDOC, with twelve years suspended and five years of post-release supervision.
Sweat, 912 So.2d at 459. On appeal, the Court of Appeals found the circuit court had committed
error when it imposed a partially suspended sentence on Sweat. Id. Like Miller, we granted
certiorari and took the opportunity to expound on a trial judge’s sentencing discretion under Miss.
Code Ann. Sections 47-7-33, -34:
We have held that, while § 47-7-34 limits the term of post-release supervision to five
years, convicted defendants may be sentenced to a longer term. However, they may
only be required to report to MDOC officials for the statutory maximum period.
Miller, 875 So.2d at 199-200 (trial judge may sentence a prior convicted felon to
more than five years provided that the period of incarceration and post-release
supervision do not exceed the maximum period of time allowed for the offense). The
time period that extends beyond the five-year statutory maximum for post-release
supervision becomes “unsupervised” post-release supervision. Boddie v. State, 875
So.2d 180, 182 n. 1 (Miss. 2004).
Id. at 460.
¶29. As with Miller, in Sweat we deciphered the trial judge’s sentencing intent and placed it in
line with the mechanisms provided in Sections 47-7-33, -34 and -37. Importantly, we were not
distracted by the “suspended sentence” language that has been so problematic over the last decade.
Instead, we focused on the substance of the sentence as stated by the trial judge that “the Defendant
be and he/she is hereby sentenced to serve a term of twenty years in custody of the Mississippi
Department of Corrections at a facility to be designated by said department, that twelve years of said
sentence shall be and the same is hereby suspended and that the defendant shall be placed under post-
release supervision upon the release from the term of incarceration for a period of five years pursuant
to Mississippi Code section 47-7-34 and said sentence is based upon the following conditions....”
Sweat, 912 So.2d at 459-60. In the end, we found the trial court’s sentence was not illegal, but we
modified the language of the sentencing order and stated:
24
Here, it is clear that the trial court sentenced Sweat under §47-7-34. Therefore, we
modify the trial court’s sentence so that following his eight years of incarceration,
Sweat will be released to twelve years of post-release supervision but that he is
required to report to MDOC officials for only five years and the remaining seven
years will be “unsupervised” post-release supervision.
Id. at 460.
¶30. Essential to our modification of the trial court’s sentence, we determined that while Section
47-7-34 limits the term of reporting (MDOC-sanctioned) post-release supervision to five years,
convicted defendants may be sentenced to a longer term. Id. We further noted that “[t]he time
period that extends beyond the five-year statutory maximum for post-release supervision becomes
‘unsupervised’ post-release supervision.”12 Id. (citing Boddie v. State, 875 So.2d 180, 182 n.1
(Miss. 2004)). To reach this result, we simply acknowledged the obvious – that “unsupervised”
merely means that the court would be monitoring Sweat during his term of “unsupervised” post-
release supervision in lieu of the Mississippi Department of Corrections. Moreover, while the trial
court is limited to the extent it can burden the Mississippi Department of Corrections with required
supervision within the statutory maximum, the court is not so limited concerning the burden it may
place on itself by way of monitoring a defendant’s behavior while the defendant is serving a
suspended sentence, “unsupervised” probation, or “non-reporting” post-release supervision.
¶31. Through the legislature’s enactment of Section 47-7-34 and our holdings in Miller and
Sweat, the sentencing discretion formerly accorded to our trial courts has been returned. No longer
can prior convicted felons take advantage of the statutory windfall which temporarily existed in
Section 47-7-33 that allowed for felons to characterize what in effect was a more lenient sentence,
12
“Unsupervised” post-release supervision is also known as “non-reporting” post-release
supervision.
25
as being somehow an “illegal” sentence. See, e.g., Robinson v. State, 836 So.2d 747 (Miss. 2002).
Moreover, our appellate courts should recognize the intentions of our trial judges when they suspend
a sentence and either impose probation under Section 47-7-33, or post-release supervision under
Section 47-7-34. Thus, in reviewing the sentencing orders of our trial courts, we must be hereinafter
cognizant of the fact that while the supervisory role of the MDOC is limited under both Sections 47-
7-33 and -34, the supervisory role of our trial courts is not so limited.
¶32. For purposes of clarity, consistency and cohesion, we hold today that the circuit and county
courts of this state have the power to suspend, in whole or in part, a convicted felon’s sentence under
Miss. Code Ann. Sentence 47-7-33 inasmuch as this Court and the legislature have empowered them
to do so under Miss. Code Ann. Sentence 47-7-34, and to the extent that the practice has been
historically ingrained in our criminal courts’ sentencing practice. In this way, the appellate courts
of this state should liberally read the Probation Act, as codified in 1956, along with the Post-Release
Supervision Program, as codified in 1995, with an eye on the intentions of the trial courts,
recognizing the trial courts’ ability to monitor or supervise prior convicted felons beyond the five-
year maximum period statutorily assigned to the MDOC.
C. Judge Prichard’s Sentencing Order:
¶33. With all of this having been said, we now turn to the specific facts of today’s case.
The relevant portion of Judge Prichard’s sentencing order in Johnson’s case states:
[I]t is by the Court ORDERED AND ADJUDGED that the said JOHNNY
JOHNSON be and he is hereby sentenced to serve a term of fifteen (15) years in the
custody of the Mississippi State Department of Corrections, with said sentence to run
consecutive to the sentence defendant is now serving, and pay all costs of Court in
this case and in Case Nos.K2000-68P and K2000-69P, said payments to be made
while on post-release supervision.
26
IT IS FURTHER ORDERED AND ADJUDGED that the defendant, Johnny
Johnson, is to serve seven (7) years of said sentence in the custody of the Mississippi
Department of Corrections under the provisions of Mississippi Code Section 47-5-
138, as amended, and upon successful completion of the service of said seven (7)
years, the remaining eight (8) years of the fifteen (15) year sentence be and the same
are hereby suspended pursuant and in conformity with the Post-Release Supervision
set out and authorized in Section 47-7-34 of the Mississippi Code of 1972, Amended
and Annotated.
¶34. The Court of Appeals found error in the trial judge’s sentencing order and, as it had done in
Sweat, specifically focused on the trial court’s eight year suspension of Johnson’s fifteen year
sentence. However, we note with deference that the Court of Appeals should have focused on the
trial judge’s invocation of Section 47-7-34 and this Court’s clear interpretation of this statute.
Moreover, the Court of Appeals failed to consider the basic meaning of a “suspended sentence” as
delineated in our decisions in both Sweat and Miller and, instead, applied the strict reading accorded
to Section 47-7-33 based on our opinion in Goss.13 As evidenced by its most recent decisions
concerning Sections 47-7-33, -34, the Court of Appeals has chosen to continue to rely on our holding
in Goss. With all due deference to the Court of Appeals, it erred in modifying Johnson’s sentence
when it failed to adopt our reading of Miss. Code Ann. Section 47-7-34, as expressly revealed in
Miller and Sweat. As such, the Court of Appeals removed the “suspended” portion of Johnson’s
sentence, replaced it with five years of post-release supervision, and considered the three years
beyond the five years of post-release supervision as “surplusage.” The Court of Appeals noted:
13
In the time since the Court of Appeals handed down it’s opinion in Johnson’s case, this
Court handed down Sweat. Even though Sweat was not handed down until after the COA opinion
in Johnson, Sweat had been decided by the time the Court of Appeals denied the motion for
rehearing in Johnson on November 1, 2005. Regardless of Sweat, however, the Court of Appeals
misinterpreted Miller.
27
Johnson had eight years of a fifteen year sentence suspended. As noted above, since
the statute [47-7-34] that permits post-release supervision does not contain language
authorizing suspending sentences, and another statute bars suspension of sentences
to prior felons, no suspension should be given. However, there is no practical
difference between what the trial judge did and what he should have done, which
would have been to sentence Johnson to a seven year term of incarceration and a five
year term of post-release supervision. We modify the sentence only to the extent that
we remove as surplusage the giving of a fifteen year sentence with eight years
suspended. In all other respects the sentence is affirmed, such that Johnson is to serve
a term of incarceration of seven years in the custody of the Mississippi Department
of Corrections, and then has a five year term of post-release supervision under the
provisions of section 47-7-34.
Johnson v. State, 2004 WL 1557913, *2, ¶ 9 (Miss. Ct. App. 2004).
¶35. In modifying the trial court’s original sentence, the Court of Appeals erroneously changed
what in essence was a fifteen year sentence, with seven years to serve, followed by eight years of
post-release supervision, to a sentence of seven years to serve, followed by five years of post-release
supervision. The Court of Appeals thus ignored the clear intention of the trial judge to order a
fifteen-year sentence, which included a term of incarceration, a maximum term of post-release
supervision and a straight suspended term (“unsupervised” or “non-reporting” post -release
supervision), and modified Johnson’s fifteen year sentence by simply removing three years of the
total sentence, calling it “surplusage.”
¶36. This modification of the trial court sentence was error and in derogation of the clear
intentions of the trial judge as delineated by Section 47-7-34. Clearly, the trial judge intended to
impose a sentence of fifteen years when he stated in his sentencing order:
The violation of any one of the above enumerated conditions shall violate the terms
and conditions of the defendant’s Post-Release Supervision and the Court shall have
the authority to revoke the defendant from Post-Release Supervision and remand him
back into the custody of the Mississippi Department of Corrections to serve all of the
remaining years left on his fifteen (15) year sentence.
28
(emphasis added). Moreover, clearly this intention is appropriately accomplished under Section 47-
7-34, as we held in Sweat, 912 So.2d at 460-61.
¶37. Today, we have accepted the Court of Appeals’ invitation to further explain our decision in
Miller (and Sweat) as applied to Sections 47-7-33, -34. Moreover, in an attempt to clarify and
reconcile Sections 47-7-33, -34, -35 & -37, we have gone to great lengths to explain the puzzle
which was created by our past interpretation of Section 47-7-33, but ultimately remedied by
legislative enactment of Section 47-7-34. While there has been some question as to the various
terms allocated to Sections 47-7-33, -34, such as suspension of sentence, supervised probation and
post-release supervision, the fundamental purpose of these statutes, as well as their terms, are
premised on the same principle – sentencing discretion. It follows that while there are specific
limitations within these statutes, limitations exist because it is the legislature’s duty to insure that
the executive body charged with executing its statutes (specifically, the Mississippi Department of
Corrections) does not become overburdened by the supervisory role conferred upon it. Moreover,
it is important to understand that the legislature, in promulgating Miss. Code Ann. Sections 47-7-33,
-34, -35 & -37 (initially codified under the Probation Act), did not intend to hamstring a trial judge’s
ability to mete out a fair and just sentence. Quite differently, by its enactments, it is obvious that the
legislature recognized a trial judge’s need to possess the discretion to impose sentences based on the
individualized considerations of each case, such as the nature of the case, the history of the
defendant, and the traditional sentencing considerations such as rehabilitation, separation from
society, retribution, and deterrence, both general and specific.
¶38. For these reasons, we find the circuit court did not impose an illegal sentence, or one which
required appellate court modification; therefore, we are constrained to find that while the Court of
29
Appeals correctly found that Johnson’s sentence (1) was not vindictive or harsh, (2) was not a denial
of due process, and (3) was not disproportionate, the Court of Appeals, on the other hand, erred in
finding the circuit court had improperly imposed a suspended sentence, thus requiring modification.
CONCLUSION
¶39. Today, we return the legislatively intended sentencing discretion to our trial courts by
clarifying that (1) Miss. Code Ann. Section 47-7-33 prohibits the imposition of a suspended sentence
and supervised probation on a prior convicted felon; however, this statute does not prohibit the
imposition of a suspended sentence, in whole or in part, upon a prior convicted felon, so long as the
sentence does not involve a period of supervised probation and does not exceed the maximum
penalty statutorily prescribed for the felony offense committed; (2) when a suspended sentence and
supervised probation are properly imposed upon a first-offender under the provisions of Section 47-
7-33, the period of supervision by the Mississippi Department of Corrections is limited to a
maximum period of five years; (3) Miss. Code Ann. Section 47-7-34 does not prohibit the imposition
of post release supervision upon a prior convicted felon, nor does this statute limit the period of post-
release supervision to a period of five years; but instead, the period of post release supervision is
limited only to the number of years, which when added to the total period of incarceration, would
not exceed the maximum penalty statutorily prescribed for the felony offense committed; and, (4)
importantly, the statutory limitation of five years applies only to that maximum period of post-release
supervision which may be served under the supervision of the Mississippi Department of
Corrections. To the extent that our decision in Goss v. State, 721 So.2d 144 (Miss. 1998), is in
conflict with today’s decision, Goss is expressly overruled.
30
¶40. The practical effect of today’s decision on Johnny Lee Johnson is that Circuit Judge R. I.
Prichard, III imposed a valid and non-modifiable sentence upon Johnson when Judge Prichard
sentenced Johnson, a prior convicted felon, to serve fifteen years in the custody of the Mississippi
Department of Corrections, with seven years to be served by actual incarceration, and the remaining
eight years to be suspended and served by way of post-release supervision pursuant to the provisions
of Miss. Code Ann. Section 47-7-34, with five of the eight years to be served in accordance with
“probation-like” terms under the supervision of the Mississippi Department of Corrections, pursuant
to Miss. Code Ann. Sections 47-7-34, -35. While the Court of Appeals correctly found that
Johnson’s sentence (1) was not vindictive or harsh, (2) was not a denial of due process, and (3) was
not disproportionate, the Court of Appeals erred when it modified Judge Prichard’s lawful sentence
to a sentence of seven years’ incarceration followed by only five years of post-release supervision.
¶41. For these reasons, the judgment of the Court of Appeals is affirmed, in part, and reversed,
in part, and the final judgment of the Circuit Court of Jefferson Davis County is reinstated and
affirmed.
¶42. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART, AND THE JUDGMENT OF THE CIRCUIT COURT OF
JEFFERSON DAVIS COUNTY IS REINSTATED AND AFFIRMED. CONVICTION OF
SALE OF A SCHEDULE II CONTROLLED SUBSTANCE (COCAINE- .1 GRAMS) AND
SENTENCE OF FIFTEEN (15) YEARS, WITH SEVEN (7) YEARS TO SERVE AND EIGHT
(8) YEARS SUSPENDED, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL RUN
CONSECUTIVELY TO THE SENTENCE APPELLANT IS NOW SERVING, AND PAY
ALL COSTS OF COURT IN THIS CASE AND CASE NOS. K2000-68P AND K2000-69P,
WITH PAYMENTS TO BE MADE WHILE ON POST-RELEASE SUPERVISION.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
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