Clark v. State

858 So. 2d 882, 2003 WL 21961968
Court of Appeals of Mississippi·Decided August 19, 2003·No. 2002-CP-00855-COA·Published·Cited by 6 cases

Opinion

858 So.2d 882 (2003)

Frederick Dewayne CLARK, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-CP-00855-COA.

Court of Appeals of Mississippi.

August 19, 2003.
Rehearing Denied October 21, 2003.

Frederick Dewayne Clark (Pro Se), for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, for appellee.

Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.

SOUTHWICK, P.J., for the court.

¶ 1. Frederick Clark was denied post-conviction relief in circuit court. On appeal, Clark alleges that the sentence he *883 received after pleading guilty was illegal; therefore he should be allowed to withdraw his plea and have his conviction set aside. We disagree and affirm.

FACTS

¶ 2. In 1996, Clark pled guilty to separate charges in two different counties within the same judicial district. In Panola County, Clark pled guilty to operating a chop shop and received a sentence of ten years' imprisonment with nine years suspended. Later that same day, Clark pled guilty to a DeSoto County charge of grand larceny and was sentenced to five years' imprisonment, all suspended, to run concurrently with the Panola County sentence. The word "probation" did not appear in either sentence, but the trial judge stated that the "suspension is pending the Defendant's future good behavior." We assume that at some later time Clark engaged in bad behavior, the suspension of Clark's sentence was terminated, and Clark was again incarcerated.

¶ 3. In April 2002, Clark petitioned for post-conviction relief. The suspended sentence given him for grand larceny was said to be illegal because of a statute that prohibits probation for previously convicted felons. By virtue of the conviction earlier in the day for operating a chop shop, Clark argues that by the time of his second plea he was a prior felon. The trial judge denied all relief.

DISCUSSION

1. Timeliness

¶ 4. The State argues Clark's petition is barred from consideration because it was filed six years following the entry of his guilty plea. The post-conviction relief statute contains a three-year limitation period. Miss.Code Ann. § 99-39-5(2) (Rev. 2000).

¶ 5. Clark asserts that his right to be free of an illegal sentence is a fundamental one not subject to a procedural bar. The Supreme Court has so found. Ivy v. State, 731 So.2d 601, 603 (Miss.1999). An argument could be made that it is freedom from an illegally harsh sentence that is the fundamental right. Regardless, we review this claim on the merits.

2. Illegal sentence

¶ 6. Clark complains that the offer of a suspended sentence in exchange for his guilty plea was an illegal inducement. A Mississippi statute prohibits the suspension of a sentence and granting of probation to defendants previously convicted of a felony.

When it appears ... that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in term time 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) (Rev.2000) (emphasis added).

¶ 7. A justice on the Supreme Court has argued that since the statute provides that a judge may not "suspend the imposition *884 or execution of sentence, and place the defendant on probation as herein provided," the statute does not prohibit the suspension of a sentence so long as the defendant is not then placed on formal probation. See Robinson v. State, 836 So.2d 747, 751-52 (Miss.2002) (Carlson, J., concurring). Clark received a suspended sentence in which the probation was informal and unsupervised. Were we to adopt the concurring opinion's analysis, Clark's sentence would be an appropriate one. We therefore examine the reasoning.

¶ 8. What that concurring justice's view would mean is that the legislature wrote a statute that permits the suspending of sentences regardless of whether defendants had prior felony convictions. However, the oversight provided by the formal probation system would be available only to first-time offenders. If the defendant had prior felonies, it was the legislature's purpose to allow the suspending of the sentence and absolutely to prohibit the placing of that felon within the system for monitoring those on probation. Suspension would be possible, but supervision would not.

¶ 9. With respect, that is counter-intuitive. There is no discernible purpose as to why a first time offender who received a suspended sentence would be supervised in the probation system, but someone with multiple felony convictions also could be released early back into society yet could not be supervised. By considering the consequences of an interpretation, courts are when reasonably possible to avoid adopting a meaning that would lead to inexplicable results. Aikerson v. State, 274 So.2d 124, 127 (Miss.1973), overruled on other grounds in Conley v. State, 790 So.2d 773 (Miss.2001). Sometimes the results of a possible interpretation may be more extreme than here. Thus, the "Golden Rule" of statutory interpretation is the avoidance of absurdity. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 45.11, p. 61 (5th ed.1993). Toiling to interpret a statute in a manner that permits a judge's desired effect is a natural tendency. Such an interpretation is likely erroneous, though, unless the text will support that the meaning is consistent with the legislative design. If a court encounters what it finds to be serendipitous looseness of statutory language, the tightening should be done reasonably as viewed in the context of the whole statute.

¶ 10. Some trial judges may wish to allow suspension of sentences for prior felons in worthy situations. Before deciding that is statutorily permitted, the question is whether the legislature was for some reason requiring that a suspension be outside the usual probation regime— not for first-time offenders, but only for those with multiple felony convictions. This would still be "probationary" because it would provide a time "period in which a person's fitness ... is tested." Definition of "probation," in AMERICAN HERITAGE DICT. OF AMERICAN LANGUAGE 1443 (3d Ed.1992). It just would not be supervised probation, i.e., "probation as herein provided" in the statute authorizing suspended sentences. Miss.Code Ann. § 47-7-33(1) (2002). The suspension would be ended if the felon later proved undeserving.

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Clark v. State, 858 So. 2d 882, 2003 WL 21961968 (Mich. Ct. App. 2003).

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