IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2025-CA-00470-COA
ALYSON KATE COLTRAIN APPELLANT v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/17/2025 TRIAL JUDGE: HON. SMITH MURPHEY COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: JACOB WAYNE HOWARD ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 09/01/2026 MOTION FOR REHEARING FILED:
EN BANC.
WEDDLE, J., FOR THE COURT:
¶1. Alyson Coltrain pled guilty to one count of felony child neglect in violation of Mississippi Code Annotated section 97-5-39(1)(d) (Rev. 2020). The circuit court sentenced Coltrain to serve five years in custody, with all five years suspended while on supervised probation pursuant to Mississippi Code Annotated section 99-19-29 (Rev. 2020), subject to several conditions, including abstinence from the use of any illegal controlled substance and supervision by a Mississippi Department of Corrections (MDOC) probation officer. On August 28, 2024, while Coltrain was subject to her suspended sentence, the State filed a petition to revoke the suspended sentence, alleging she left the state without permission and tested positive for THC, cocaine, amphetamine, and benzodiazepine.
¶2. At the revocation hearing, Coltrain signed a “Stipulated and Agreed to Basis” order. The order revoked and reimposed Coltrain’s five-year suspended sentence pursuant to section 99-19-29, gave her credit for six days, and ordered her to participate in an alcohol and drug program while in the custody of the MDOC. Coltrain filed a motion for post-conviction relief (PCR), arguing that her sentence was unlawfully imposed. The Panola County Circuit Court denied the motion, and Coltrain appealed. Finding no error, we affirm.
FACTS
¶3. On August 16, 2023, Coltrain was indicted on one count of felony child neglect. While under the influence of narcotics, Coltrain placed her infant son in the bed with her to sleep, and the child’s positioning resulted in the child’s death. Coltrain pled guilty on April 22, 2024. During the plea hearing, the circuit court informed Coltrain, in the presence of her attorney, “when you test positive because I’m going to sentence you under 99-19-29[,] and when you test positive one time, you go to prison.” Coltrain replied, “Yes, sir.” It was revealed during the plea hearing that Coltrain recently tested positive for several illegal drugs and controlled substances. She also admitted to recently using amphetamines and marijuana. The circuit court accepted Coltrain’s negotiated plea, but the sentencing was continued to determine if Coltrain could stop using illegal drugs and controlled substances for one month.1
¶4. On May 29, 2024, after a negative drug test, Coltrain was sentenced to five years in
1 It was revealed that Coltrain had another child after the death of her son and before the plea hearing.
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MDOC custody, with all five years suspended, contingent upon Coltrain meeting with a probation officer for five years and her good behavior, including refraining from using any illegal drugs and controlled substances.
¶5. On August 22, 2024, the State filed a petition to revoke Coltrain’s suspended sentence. In the petition, the State claimed that Coltrain admitted to leaving the state without permission, and she tested positive for THC, cocaine, amphetamine, and benzodiazepine. On September 24, 2024, the circuit court held a revocation hearing.2 During the revocation hearing, Coltrain admitted to using THC but denied leaving the state. The State decided not to proceed with the charge for leaving the state. At the conclusion of the hearing, the judge stated, “Pursuant to 99-19-29 and Atwood v. State, 183 So. 3d 843, [Coltrain’s] five years is hereby revoked.” The circuit court imposed the full term of the original sentence, gave Coltrain credit for the six days already served while awaiting the hearing, and ordered her to complete the long-term drug and alcohol program in MDOC custody.
¶6. On January 8, 2025, Coltrain filed a PCR motion, arguing that section 99-19-29 allows circuit courts to revoke suspended sentences only for misdemeanors and that, because she was convicted of a felony, the circuit court could revoke her suspended sentence only under the graduated sanctions of Mississippi Code Annotated section 47-7-37 (Rev. 2023). After a hearing, the circuit court denied Coltrain’s PCR motion. The circuit court held that it was not bound by section 47-7-37’s graduated penalty scheme when it revoked Coltrain’s
2 Coltrain was nine weeks pregnant at the time of the revocation hearing.
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suspended sentence, and Coltrain failed to cite any authority that supports her argument that section 99-19-29 only applies to misdemeanors. Aggrieved, Coltrain appeals.
STANDARD OF REVIEW
¶7. When reviewing the trial court’s denial or dismissal of a PCR motion, the appellate court will reverse the judgment if the “factual findings are clearly erroneous.” Miller v. State, 412 So. 3d 393, 395 (¶8) (Miss. Ct. App. 2024) (citing Berry v. State, 230 So. 3d 360, 362
(¶3) (Miss. Ct. App. 2017)). Questions of law, however, are reviewed de novo. Id.
DISCUSSION
I. Authority to Revoke Coltrain’s Sentence
¶8. Coltrain argues that her five-year sentence imposed by the circuit court is illegal and must be vacated.3 Coltrain contends that the circuit court erred by “insisting that it could circumvent [s]ection 47-7-37’s graduated penalty scheme by relying on [s]ection 99-19-29 to revoke Ms. Coltrain’s suspended sentence and term of probation.” Finding no error, we affirm.
¶9. Coltrain was not sentenced to a term of post-release supervision (PRS) pursuant to
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Coltrain also argues that considering historical context and plain language, sections 99-19-29 and 99-19-25 only apply in misdemeanor cases. However, section 99-19-29 does not include language even implying that the “legislature failed to state something other than what was plainly stated.” Miss. State Port Auth. at Gulfport v. Yilport Holding A.S., 416 So. 3d 83, 90 (¶26) (Miss. 2025). Coltrain’s sentence was imposed and revoked pursuant to section 99-19-29. As the circuit court correctly points out in its order, no wording in section 99-19-29 states that the statute applies only to misdemeanors. The circuit court noted that if the Legislature intended for the statute to only apply to misdemeanors, then “the statute would have been revised to include that exact wording sometime within the last century.”
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section 47-7-37. Coltrain’s sentence was suspended pursuant to section 99-19-29. The suspended sentence was contingent on several conditions, including abstaining from the use of any illegal controlled substances and supervision by a probation officer.4 Mississippi Code Annotated section 99-19-29 provides:
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.
Under this statute, the circuit court has the authority to “impose a sentence and then suspend that sentence.” Anderson v. State, 89 So. 3d 645, 651 (¶11) (Miss. Ct. App. 2011); see
4 “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. Under a suspended sentence the defendant is not required [by statute] to report to an officer as he is while on probation. However, the trial court does possess the power to revoke the suspended sentence.” Johnson v. State, 925 So. 2d 86, 93 (¶12) (Miss. 2006) (citation omitted). “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.” Id. Here, the circuit court made reporting to a probation officer a condition of Coltrain’s suspended sentence. The circuit court also advised her that after two years, if her drug tests were negative and she paid all fees and fines, then the court would consider decreasing the period of supervised probation reporting time and move Coltrain to a non-reporting status.
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Atwood v. State, 183 So. 3d 843, 847 (¶12) (Miss. 2016) (finding section 99-19-29 “addresses a circuit court’s authority to impose and subsequently vacate a suspended sentence, as well as the authority to vacate a conditional pardon”).
¶10. In support of her argument, Coltrain relies on Atwood in which our Supreme Court found that section 99-19-29 could not be relied on as authority to revoke Atwood’s PRS. Atwood, 183 So. 3d at 847 (¶12). However, in Atwood, our Supreme Court specifically found that the circuit court erred by applying section 99-19-29 when Atwood was not sentenced under section 99-19-29. Id. We have acknowledged that “suspending a sentence and granting probation are not interchangeable mechanisms.” Carroll v. State, 3 So. 3d 767, 772 (¶9) (Miss. Ct. App. 2008). Unlike in the case before us, Atwood was sentenced to a term of PRS, and the State sought to revoke his PRS, which is governed by section 47-7-37. Atwood, 183 So. 3d at 847 (¶12).
¶11. Here, the sentencing order, signed by Coltrain, clearly provided that the sentence imposed was a suspended sentence pursuant to section 99-19-29 subject to Coltrain’s compliance with several conditions. Moreover, Coltrain acknowledged during the plea hearing that she understood her sentence pursuant to section 99-19-29. The record reveals that she understood that as a condition of her suspended sentence, she was to abstain from the use of illegal drugs and controlled substances. Section 47-7-37 is a different mechanism that provides courts with a graduated framework for probation revocation. Again, “[s]ection 99-19-29 addresses a circuit court’s authority to impose and subsequently vacate a suspended
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sentence[.]” Id. “The duty of this Court is to interpret the statutes as written.” K&C Logistics LLC v. Old Dominion Freight Line Inc., 374 So. 3d 515, 524 (¶41) (Miss. 2023). A plain reading of section 99-19-29 reveals no statutory constraints on judicial authority to impose or revoke a suspended sentence. Our Supreme Court acknowledged in Johnson that section 99-19-29 “clearly evinces the distinct nature of a judge’s discretionary power to suspend a sentence.” Johnson, 925 So. 2d at 93 (¶13). This Court has also found that trial courts have “the power to revoke [a] suspended sentence if the defendant violates the conditions of the suspension.” Savell v. Manning, 325 So. 3d 1208, 1221 (¶48) (Miss. Ct. App. 2021). Accordingly, we find that the circuit court properly revoked her suspended sentence pursuant to section 99-19-29 for violating conditions imposed during sentencing, and this issue is without merit.
II. Illegal Sentence
¶12. The circuit court found that because Coltrain failed to challenge the basis for the revocation, the issue is waived. Coltrain claims that she did not waive her fundamental right to a lawful revocation sentence by failing to object to the circuit court’s reliance on section 99-19-29. Because Coltrain did not object, we review the issue under the plain-error doctrine. Under the plain-error doctrine, we initially consider (1) whether there was an obvious error (2) that adversely affected a defendant’s substantive rights, causing a manifest miscarriage of justice. Rodgers v. State, 166 So. 3d 537, 544 (¶15) (Miss. Ct. App. 2014). “For the plain-error doctrine to apply, there must have been an error that resulted in a manifest
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miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id.
¶13. Coltrain argues the circuit court imposed an illegal sentence because the sentence exceeded the maximum period of imprisonment authorized by Mississippi Code Annotated section 47-7-37(5)(a).5 However, as we noted above, the circuit court properly revoked Coltrain’s suspended sentence pursuant to section 99-19-29 for violating conditions imposed during sentencing. Under section 99-19-29, a defendant must serve the full term of the original sentence that has not been served. Coltrain was sentenced to five years, with all five years suspended while on supervised probation pursuant to section 99-19-29. During her suspended sentence, Coltrain tested positive for illegal substances while pregnant, which directly violated one of the conditions imposed on her suspended sentence. After a revocation hearing, the circuit court revoked Coltrain’s suspended sentence and ordered Coltrain to serve the full five years imposed at sentencing, as section 99-19-29 requires. Therefore, we find no error by the circuit court’s revoking Coltrain’s suspended sentence, and her claim is without merit.
5 Throughout Coltrain’s argument to the circuit court in support of her PCR motion and throughout her brief on appeal, she emphasizes her position that the circuit court circumvented section 47-7-37 by applying section 99-19-29 instead. Although the circuit court could have sentenced Coltrain to a term of PRS pursuant to section 47-7-37, and thereby pursuant to Atwood, the circuit court would have been limited to the graduated penalty scheme contained therein. The record reveals that because of Coltrain’s particular charge, and her apparent issue with the abuse of narcotics, the circuit court chose a different statute—a statute that remains law in the State of Mississippi. Finding that the limitations argued by Coltrain do not apply to her case, we affirm.
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CONCLUSION
¶14. For the foregoing reasons, the circuit court’s denial of Coltrain’s PCR motion is affirmed.
¶15. AFFIRMED.
BARNES, C.J., LAWRENCE, EMFINGER AND LASSITTER ST. PÉ, JJ., CONCUR. McDONALD, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. WILSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON, P.J., WESTBROOKS AND McCARTY, JJ.; McDONALD, J., JOINS IN PART.
WILSON, P.J., DISSENTING:
¶16. I understand why the sentencing judge wanted Coltrain’s probation and suspended sentence to be fully revocable if she violated the terms of her probation. Coltrain’s drug use had contributed to the death of one child, and she admitted that she was still using drugs when she pled guilty three years after the child’s death. I also understand why the judge revoked Coltrain’s probation and ordered her to serve her entire suspended sentence when she again tested positive for drugs just a few months after pleading guilty. Nonetheless, the law does not authorize a sentence greater than ninety days in a technical violation center for Coltrain’s first violation of the terms of her probation. See Miss. Code Ann. § 47-7-37(5)(a) (Rev. 2023). Accordingly, Coltrain is serving an illegal sentence, and I respectfully dissent.
¶17. In May 2024, Coltrain pled guilty, and the circuit court sentenced her via a “SUPERVISED PROBATION ORDER” that provided in relevant part:
[T]he Defendant is hereby sentenced to a term of Five (5) years incarceration in the Mississippi Department of Corrections. However, . . . the Court hereby
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suspends the execution of the above sentence. [sic] and pursuant to MCA § 99- 19-29.[6]
The Defendant is hereby placed on probation under the supervision of said Department for Five (5) 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.
Said suspension of the execution of said sentence is upon the condition that the Defendant comply with all conditions required by the Laws of the State of Mississippi for probation as well as with the following:
1. Report within 24 hours of release from court or incarceration to his/her probation officer;
....
5. Report to the Department of Corrections as directed;
6. Permit the Field Supervisor to visit him at home, work, or elsewhere;
....
8. Remain within the State of Mississippi unless authorized to leave on proper application therefore;
....
12. Pay to the Mississippi Department of Corrections such monthly reporting fees as authorized by the Laws of Mississippi; said fees to be paid monthly by certified check or money order.
....
14. Submit to such breath, saliva, urine, or other chemical
6 The sentencing judge handwrote “and pursuant to MCA § 99-19-29.”
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analysis as requested to detect the possible presence of narcotics, alcohol, or other prohibited substances.
15. Promptly and truthfully answer all inquiries directed to him/her by any probation or parole officer;
16. Attend and complete any special programs or counseling as directed by the Court or the supervising officer;
¶18. It is evident from the terms of Coltrain’s “SUPERVISED PROBATION ORDER” that the court suspended execution of Coltrain’s five-year sentence and placed Coltrain on supervised probation. This type of sentence is authorized by Mississippi Code Annotated section 47-7-33(1) (Rev. 2023), which provides:
When it appears to the satisfaction of any circuit court or county court in the State of Mississippi having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such 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, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided . . . .
(Emphasis added).
¶19. The Mississippi Supreme Court has explained the relationship and distinctions between a suspended sentence and probation as follows:
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.
By definition, a “suspended sentence” is a unique mechanism by which the
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court may postpone the imposition of a sentence altogether or delay the execution of a sentence once it has been pronounced. Suspension is a term which generally applies to the actions of the state in relation to a prisoner under its supervision and control. Simply stated, “suspension” is the restriction placed upon the power of the State to act during that (the suspended portion of a sentence) period.
Quite differently, probation restricts the prisoner’s rights rather than those of the State. If a prisoner is under court imposed probation, that prisoner may be incarcerated if the conditions of probation are not followed. Probation is a matter of grace and a conditional liberty that is a favor, not a right or entitlement. 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. 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.
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. Moreover, a straight suspended sentence is not subject to the conglomeration of rules that can be attached to a sentencing order granting probation.
. . . [S]uspending a sentence and granting probation are not interchangeable mechanisms, and . . . 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. A suspended sentence is one that is given formally but not actually served. . . . Under a suspended sentence the defendant is not required to report to an officer as he is while on probation.
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Johnson v. State, 925 So. 2d 86, 91-93 (¶¶9-12) (Miss. 2006) (emphasis added) (citations and footnotes omitted).
¶20. Here, the court ordered Coltrain to report to a probation officer and placed her under the supervision of the Department of Corrections. Thus, consistent with the Supreme Court’s explanation of these concepts in Johnson, it is clear that the court sentenced Coltrain to “probation” or a “probationary sentence,” not a “straight suspended sentence.” Id.; see also Mackey v. State, 37 So. 3d 1161, 1167 (¶¶26-27) (Miss. 2010) (Carlson, P.J., specially concurring) (explaining that the defendant was serving a “straight suspended sentence” because he “was not placed on probation,” “placed under the supervision of the Mississippi Department of Corrections,” or “directed to report to a MDOC probation officer”).7
¶21. When, as in this case, a court suspends a sentence and places an offender on probation pursuant to section 47-7-33, the offender’s probation and suspended sentence are subject to revocation pursuant to Mississippi Code Annotated section 47-7-37(5)(a), which provides in relevant part:
If the court revokes probation for one or more technical violations,[8] the court
7 The Mississippi Supreme Court has held that a circuit court has no “inherent power to suspend a sentence.” Atwood v. State, 183 So. 3d 843, 846 (¶9) (Miss. 2016); accord Fuller v. State, 100 Miss. 811, 57 So. 806 (1912). However, both supervised probation with a suspended sentence and “[u]nsupervised probation” or “a straight suspended sentence” are authorized under section 47-7-33. Johnson, 925 So. 2d at 92 n.5. In this case, the circuit court sentenced Coltrain to probation with a suspended sentence.
8 At the time of Coltrain’s sentencing and revocation, a “technical violation” was defined as “an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer.” Miss. Code Ann.
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shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first revocation and not to exceed one hundred twenty (120) days for the second revocation. For the third revocation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence. For the fourth and any subsequent revocation, the court may impose up to the remainder of the suspended portion of the sentence. The period of imprisonment in a technical violation center imposed under this section shall not be reduced in any manner.
¶22. Again, it is evident that the circuit court suspended Coltrain’s sentence and placed her on supervised probation. Therefore, the revocation of Coltrain’s probation and suspended sentence was subject to the procedures and limitations set out in section 47-7-37. Having placed Coltrain on supervised probation, the court could not circumvent the limitations of section 47-7-37 simply by adding a citation to section 99-19-29.
¶23. Similarly, in Atwood v. State, 183 So. 3d 843 (Miss. 2016), the offender had been sentenced to a term of post-release supervision (PRS) pursuant to section 47-7-34 that was later revoked. Id. at 844-45 (¶2). A proceeding to revoke PRS—just like a proceeding to revoke probation—is “governed by Section 47-7-37.” Id. at 847 (¶12).9 The Supreme Court
§ 47-7-2(q) (Rev. 2023).
9 The majority opinion emphasizes that “[u]nlike in the case before us, Atwood was sentenced to a term of PRS, and the State sought to revoke his PRS, which is governed by section 47-7-37.” Ante at ¶10. Indeed, it is clear that Coltrain was on probation, not PRS. “Supervised probation and [PRS] are totally different statutory creatures.” Miller v. State, 875 So. 2d 194, 199 (¶9) (Miss. 2004). Probation and PRS are authorized by different statutes. Probation is authorized by section 47-7-33, whereas PRS is authorized by section 47-7-34. However, the procedures for revoking both PRS and probation are governed by the same statute—section 47-7-37. Those procedures are the same whether the offender is on PRS or probation. See Miss. Code Ann. § 47-7-34(2) (“Procedures for termination [of
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held that having sentenced the offender to PRS, the circuit court could not rely on section 99- 19-29 “as authority to revoke Atwood’s post-release supervision.” Id. The same is true here. Having sentenced Coltrain to probation, the circuit court cannot avoid section 47-7-37 by simply citing section 99-19-29.
¶24. Moreover, Coltrain correctly argues that section 99-19-29 does not provide any independent authority for a court to suspend a sentence. In 1914, the Legislature enacted what is now the first sentence of section 99-19-25 and thereby “authorized” the circuit courts “to suspend a sentence” “in misdemeanor cases” only. 1914 Miss. Laws ch. 208 (S.B. 265) (emphasis added). That legislation was entitled, “AN ACT to permit the circuit judge in misdemeanor cases to suspend sentence, and to suspend the execution of a sentence, or any part thereof.” Id. Twelve years later, the Legislature enacted what are now sections 99-19- 27 and 99-19-29. 1926 Miss. Laws ch. 147 (S.B. 203). That legislation was entitled, “AN ACT to provide for enforcement of violated conditional pardons, suspended sentences and prison paroles.” Id. The 1926 legislation was codified in Hemingway’s Annotated Mississippi Code immediately following the 1914 act. Hemingway’s Code (1927) §§ 1338-
PRS] and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence as required pursuant to Section 47-7-37.”); Miss. Code Ann. § 47-7-37(9) (“The arrest, revocation and recommitment procedures of this section also apply to persons who are serving a period of post-release supervision imposed by the court.”); Anderson v. State, 89 So. 3d 645, 650
(¶11) (Miss. Ct. App. 2011) (stating that “the same [revocation] procedures” in section 47-7- 37 apply to both probation with a suspended sentence and PRS). Thus, although Coltrain was placed on probation, not released on PRS, the revocation of her probation is subject to section 47-7-37.
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1340. These three sections were also codified sequentially in the Mississippi Code of 1930. Miss. Code (1930) ch. 21, §§ 1298-1300. Thus, in 1914, the Legislature “authorized” the circuit courts “to suspend a sentence” “in misdemeanor cases” only, 1914 Miss. Laws ch. 208 (S.B. 265) (emphasis added), and in 1926, the Legislature enacted procedures for revoking suspended sentences. The 1926 act, including what is now section 99-19-29, did not grant courts new or expanded authority to suspend sentences but only supplied a means for addressing violations of the conditions of a suspended sentence. A careful reading of the plain language of section 99-19-29 shows that it does not authorize a suspended sentence but only permits a court to revoke (i.e., “annul and vacate”) a suspended sentence.
¶25. Moreover, this understanding of the history and text of section 99-19-29 is consistent with Mississippi Supreme Court precedent. In Johnson, the Supreme Court reiterated that until 1956, the circuit courts were “authorized . . . to suspend sentences in misdemeanor cases only” and “had no statutory authority to suspend sentences in felony cases.” Johnson, 925 So. 2d at 96 (¶18) (emphasis added) (quoting McDaniel v. State, 356 So. 2d 1151, 1159 (Miss. 1978) (Sugg, J., specially concurring)); accord Atwood, 183 So. 3d at 846 (¶9). The Court explained that sections 10 and 11 of the 1956 Probation Act, 1956 Miss. Laws ch. 262 (S.B. 1505), first authorized courts to suspend felony sentences. Johnson, 925 So. 2d at 96 (¶18).10 As discussed above, what is now section 99-19-29 has been law since 1926. If—as the circuit court and the majority opinion have concluded—that statute independently
10 Section 10 of the 1956 Probation Act is now section 47-7-33.
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authorizes the suspension of a felony sentence, the Supreme Court never would have stated that “[b]efore 1956 the circuit . . . courts had no statutory authority to suspend sentences in felony cases.” Johnson, 925 So. 2d at 96 (¶18) (emphasis added).
¶26. In sum, although I understand why the circuit court wanted Coltrain’s sentence to be fully revocable upon a positive drug test, section 47-7-37 necessarily governs the revocation of an offender sentenced to probation pursuant to section 47-7-33. Therefore, the court was not authorized to sentence Coltrain to serve more than ninety days in a technical violation center for the first technical violation of the terms of her probation. Miss. Code Ann. § 47-7- 37(5)(a). Because Coltrain is serving an illegal sentence, I respectfully dissent.11
CARLTON, P.J., WESTBROOKS AND McCARTY, JJ., JOIN THIS OPINION.
McDONALD, J., JOINS THIS OPINION IN PART.
11 The circuit court also stated that Coltrain “waived” her present challenge to the sentence imposed following her revocation because she failed to raise the issue during her revocation hearing. However, “[a]n illegal sentence is an obvious error subject to plain- error review.” Swinney v. State, 241 So. 3d 599, 606 (¶17) (Miss. 2018) (quoting Martin v. State, 214 So. 3d 217, 220 (¶6) (Miss. 2017)). “[A]n illegal sentence is one that does not conform to the applicable penalty statute.” Grayer v. State, 120 So. 3d 964, 969 (¶16) (Miss. 2013). Coltrain’s sentence following her revocation did “not conform to the applicable penalty statute,” i.e., section 47-7-37(5)(a). Moreover, although the Uniform Post-Conviction Collateral Relief Act provides that the failure to raise issues or errors that “were capable of determination at trial and/or on direct appeal . . . shall constitute a waiver” and a “procedural[] bar[],” Miss. Code Ann. § 99-39-21(1) (Rev. 2020), this case does not involve any issues that could have been raised “at trial and/or on direct appeal.” Rather, Coltrain’s PCR motion stems from a probation revocation hearing, and an order revoking probation is not directly appealable. Accordingly, I would also hold that the circuit court erred to the extent it ruled that Coltrain waived her present challenge.