Brown v. State

533 So. 2d 1118, 1988 WL 122494
Mississippi Supreme Court·Decided November 9, 1988·No. 57899·Published·Cited by 19 cases

Opinion

533 So.2d 1118 (1988)

Billy Gunn BROWN
v.
STATE of Mississippi.

No. 57899.

Supreme Court of Mississippi.

November 9, 1988.
Rehearing Denied December 7, 1988.

*1119 G. Jyles Eaves, Louisville, John Arthur Eaves, Jackson, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Deirdre D. McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and SULLIVAN and ZUCCARO, JJ.

ZUCCARO, Justice, for the Court:

STATEMENT OF THE CASE

We are called on today to interpret in a case of first impression, § 99-15-26 of the *1120 Mississippi Code. The appeal before us was taken from an order of the Circuit Court of Lauderdale County, denying the appellant's motion to withdraw a guilty plea entered under § 99-15-26, and sentencing him to four years in the custody of the Mississippi Department of Corrections.

FACTS

On September 7, 1984, Billy Gunn Brown was indicted by a Lauderdale County Grand Jury on a charge of embezzling $21,983.32 from funds collected in his capacity as justice court judge. After reaching a plea bargain agreement with the State, Brown filed in Lauderdale County Circuit Court a petition to enter a plea of guilty. The petition specified that Brown disclaimed any guilt of the charge against him, but that he was accepting the plea bargain under the authority of North Carolina v. Alford,[1] 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The petition stated in part:

Based upon the evidence which I have been informed that the State intends to offer at my trial and in consideration of the plea bargaining offer made by the State of Mississippi and having weighed those facts, I do hereby waive my right to a trial by jury to accept said plea bargaining under the authority of North Carolina v. Alford, 400 U.S. 25 [91 S.Ct. 160, 27 L.Ed.2d 162] (1970), while maintaining my innocence. [The] State has recommended (4) four years pursuant to Section 99-15-26 M.C.A. (1972), as amended with the court to determine the supervision, if any, restitution which has already been performed and the defendant to pay court costs. There are no other charges pending against me or to be presented based upon my understanding with the State at this time.

Section 99-15-26 of the Mississippi Code (Supp. 1987) provides:

(1) In all criminal cases, felony and misdemeanor, other than crimes against the person, the circuit or county court shall be empowered, upon the entry of a plea of guilty by a criminal defendant, to withhold acceptance of the plea and sentence thereon pending successful completion of such conditions as may be imposed by the court pursuant to subdivision (2) of this section. No person having previously qualified under the provisions of this section or having ever been convicted of a felony shall be eligible to qualify for release in accordance with this section. A person shall not be eligible to qualify for release in accordance with this section if such person has been charged (a) with an offense pertaining to the sale, barter, transfer, manufacture, distribution or dispensing of a controlled substance, or the possession with intent to sell, barter, transfer, manufacture, distribute or dispense a controlled substance, as provided in Section 41-29-139(a)(1), Mississippi Code of 1972, except for a charge under said provision when the controlled substance involved is one (1) ounce or less of marihuana; or (b) with an offense pertaining to the possession of one (1) kilogram or more of marihuana as provided in Section 41-29-139(c)(2)(D), Mississippi Code of 1972.
(2) Conditions which the circuit or county court may impose under subdivision (1) of this section shall consist of:
(a) Reasonable restitution to the victim of the crime.
(b) Performance of not more than nine hundred sixty (960) hours of public service work approved by the court.
(c) Payment of a fine not to exceed the statutory limit.
(d) The court may, in its discretion, require the defendant to remain in the program subject to good behavior for a period of time not to exceed one-half (1/2) of the maximum sentence allowable *1121 for the crime committed by the defendant.
(3) Upon successful completion of the court-imposed conditions permitted by subdivision (2) of this section, the court shall direct that the cause be dismissed and the case be closed.
(4) This section shall take effect and be in force from and after March 31, 1983.

It was this section under which Brown agreed to plead, and which allows circuit or county judges in limited circumstances to receive a criminal defendant's guilty plea, but withhold acceptance of the plea, and defer sentencing. If the defendant successfully completes certain court-imposed conditions, the cause against him is then dismissed and the case closed.

Following a hearing and pre-sentence investigation, Judge Henry W. Palmer accepted Brown's guilty plea, having determined that it was made voluntarily and with knowledge of its consequences. Pursuant to § 99-15-26, however, Judge Palmer withheld adjudication of guilt. Judge Palmer's order placed Brown under the supervision of the Mississippi Department of Corrections for a period of four years. The judge's order, dated June 27, 1985, stated in part:

Therefore, for said offense and on said plea of guilty, and with the consent of Billy Gunn Brown, being expressed in open Court, it is therefore ORDERED AND ADJUDGED that entering of judgment of guilty and further proceedings in this action are hereby deferred, and Court does accept guilty plea but withholds adjudication of guilt. And it having been made known to the Court that the ends of justice and the best interest of the public will be best served under Section 99-15-26 if further proceedings herein are deferred for a period of four years and the defendant is hereby placed under the supervision of the Mississippi Department of Corrections for four years until the Court in term time or a Judge in vacation shall either enter an adjudication of guilty in accordance herewith to sentence the defendant or until the Court shall alter, extend or terminate the above period of probation and its conditions, and said probationary period shall be subject to the following conditions:
(a) Defendant shall hereafter commit no offense against the laws of this or any state of the United States, or of the United States.

(Emphasis added).

On August 25, 1986, Brown was convicted of the crimes of sexual battery upon a minor child, touching and handling a minor child for lustful purposes, and two counts of contributing to the delinquency of a minor. These offenses occurred during the period between May, 1985, and September, 1985. Since one or more of the offenses occurred after the date of Judge Palmer's order relative to the embezzlement charge, Brown was in violation of that part of the order which stated: "Defendant shall hereafter commit no offense against the laws of this or any state of the United States, or of the United States."

On September 2, 1986, Mary Boler, Field Officer with the State Department of Corrections, filed a petition to have Brown's probation revoked.

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Brown v. State, 533 So. 2d 1118, 1988 WL 122494 (Mich. 1988).

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