IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-00152-COA
MICHELE EDWARD FROST A/K/A MICHAEL APPELLANT EDWARD FROST
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/22/2021 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: JIM L. DAVIS III ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 05/24/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE BARNES, C.J., WESTBROOKS AND EMFINGER, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Michele Edward Frost a/k/a Michael Edward Frost appeals from the Harrison County
Circuit Court’s denial of his petition for expungement. After a review of the record, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Frost was indicted in August 1995 by a Harrison County grand jury on charges of
embezzlement in violation of Mississippi Code Annotated section 97-23-19 (Rev. 1994). In
May 1996, he pled guilty to one count of embezzlement in the Harrison County Circuit
Court. Frost was sentenced to serve five years in the custody of the Mississippi Department of Corrections; the court suspended all five years and placed Frost on five years of probation.
He was also required to pay court costs and, along with his co-defendants, $11,291 in
restitution.
¶3. At the time of sentencing and in the probation order, the circuit court retained
jurisdiction of the case. However, the circuit court did not withhold acceptance of Frost’s
guilty plea. The notice of criminal disposition did not indicate that his sentence was
provisional or that it was a non-adjudication. The disposition specifically noted that Frost’s
conviction was the result of a guilty plea.
¶4. After paying the restitution, Frost was released from probation early. On November
5, 2020, before a new judge and with the assistance of a new attorney, Frost filed a petition
requesting that the circuit court (1) reconsider his adjudication of guilty, (2) grant him non-
adjudication, (3) dismiss the embezzlement charges, and (4) expunge his record. The petition
was denied. The circuit court ruled that it lacked jurisdiction, holding that “under the current
law a sentencing court retaining jurisdiction at the time of the sentence is not enough to allow
a court to potentially set aside an adjudication of guilt at a later date.” Frost appeals.
STANDARD OF REVIEW
¶5. “Expungement is statutory in nature”; thus, we employ a de novo standard of review.
Robertson v. State, 158 So. 3d 280, 281 (¶3) (Miss. 2015).
DISCUSSION
I. Whether the trial court retained jurisdiction pursuant to Mississippi Code Annotated section 99-15-26 (Rev. 1994).
2 ¶6. Circuit courts do not have the inherent power to expunge criminal records, but they
can do so if statutorily authorized. Caldwell v. State, 564 So. 2d 1371, 1373 (Miss. 1990).
Frost admits that his embezzlement conviction is ineligible for expungement under
Mississippi Code Annotated section 99-19-71(2)(a)(x) (Rev. 2020), and he crafts an alternate
route in an effort to gain relief. In May 1996, Mississippi Code Annotated section 99-15-
26(1) (Rev. 1994) provided that “upon the entry of a plea of guilty by a criminal defendant,
[a circuit court can] withhold acceptance of the plea and sentence thereon pending successful
completion of such conditions as may be imposed by the court . . . .”
¶7. Paramount to the application of section 99-15-26(1) is the fact that a trial court can
withhold acceptance of a guilty plea and the sentencing of a criminal defendant. In this
instance, Frost’s guilty plea was accepted, he was adjudicated guilty, and he was sentenced.
Similar circumstances were present in Smith v. State, 869 So. 2d 425 (Miss. Ct. App. 2004).
Smith pled guilty, was sentenced to three years (suspended) and two years of probation, and
ordered to pay a $200 fine. Id. at 426 (¶3). Smith’s petition for expungement was denied
because the circuit court lacked jurisdiction at the time. Id. at 426 (¶4). On appeal, we held:
The court lacked jurisdiction to expunge Smith’s criminal record because the trial court did not withhold acceptance of her guilty plea . . . . Smith did not receive a non-adjudication of guilt from the trial court. Instead, the trial court sentenced Smith to regular probation. Because Smith was not sentenced pursuant to Section 99-15-26, her argument is without merit.
Id. at 428 (¶9); accord Wallace v. State, 607 So. 2d 1184, 1187 (Miss. 1992) (holding that
in section 99-15-26 proceedings, no guilty plea is accepted, and no sentence is imposed).
3 ¶8. We find that Smith is controlling. To the extent the trial court retained jurisdiction at
all, it was only for the purpose of supervising Frost’s probation. See Brown v. State, 872 So.
2d 96, 99 (¶13) (Miss. Ct. App. 2004) (holding that “[a]lthough Brown served the portion of
his sentence which was not suspended, he was not released from the jurisdiction of the
Benton County Circuit Court until the period of suspension expired”); see also Miss. Code
Ann. § 47-7-37 (Supp. 2018). As Frost admits, the probation order does not grant him a non-
adjudication. And the notice of criminal disposition shows a clearly marked box next to
“Suspended Sentence/Probation” and “Guilty Plea” and an unmarked box next to “Non-
Adjudication.”
¶9. Additionally, “[l]ongstanding authority holds ‘[o]nce a case has been terminated and
the term of court ends, a circuit court is powerless to alter or vacate its judgment,’ in the
absence of a statute authorizing modification of a sentence.” Ducote v. State, 970 So. 2d
1309, 1313 (¶7) (Miss. Ct. App. 2007) (quoting Presley v. State, 792 So. 2d 950, 954 (¶18)
(Miss. 2001)). Frost pled guilty in May 1996. It cannot be disputed that the term during
which Frost pled guilty and was sentenced had ended long before his petition to
reconsider/for expungement was filed in November 2020. Frost’s criminal case was
terminated, at the latest, on April 6, 1999, when he was discharged from probation. Frost
attempts to distinguish Mississippi Commission on Judicial Performance v. Russell, 691 So.
2d 929 (Miss. 1997), which the circuit court relied on when denying his petition. While he
is correct that the facts of Russell differ from those here, the Supreme Court’s ruling “that
4 circuit court judges have [no] inherent authority to modify sentences after the end of the term
of court during which the sentence [was] given[,]” still applies and the circuit court did not
err in so holding. Id. at 944.
II. Whether, pursuant to Sallie v. State, this Court may grant the circuit court jurisdiction to non-adjudicate Frost’s conviction.
¶10. Frost relies on Sallie v. State, 237 So. 3d 749 (Miss. 2018), in support of his argument
that this Court has the ability to grant the circuit court jurisdiction to review the adjudication
of his conviction.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-00152-COA
MICHELE EDWARD FROST A/K/A MICHAEL APPELLANT EDWARD FROST
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/22/2021 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: JIM L. DAVIS III ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 05/24/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE BARNES, C.J., WESTBROOKS AND EMFINGER, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Michele Edward Frost a/k/a Michael Edward Frost appeals from the Harrison County
Circuit Court’s denial of his petition for expungement. After a review of the record, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Frost was indicted in August 1995 by a Harrison County grand jury on charges of
embezzlement in violation of Mississippi Code Annotated section 97-23-19 (Rev. 1994). In
May 1996, he pled guilty to one count of embezzlement in the Harrison County Circuit
Court. Frost was sentenced to serve five years in the custody of the Mississippi Department of Corrections; the court suspended all five years and placed Frost on five years of probation.
He was also required to pay court costs and, along with his co-defendants, $11,291 in
restitution.
¶3. At the time of sentencing and in the probation order, the circuit court retained
jurisdiction of the case. However, the circuit court did not withhold acceptance of Frost’s
guilty plea. The notice of criminal disposition did not indicate that his sentence was
provisional or that it was a non-adjudication. The disposition specifically noted that Frost’s
conviction was the result of a guilty plea.
¶4. After paying the restitution, Frost was released from probation early. On November
5, 2020, before a new judge and with the assistance of a new attorney, Frost filed a petition
requesting that the circuit court (1) reconsider his adjudication of guilty, (2) grant him non-
adjudication, (3) dismiss the embezzlement charges, and (4) expunge his record. The petition
was denied. The circuit court ruled that it lacked jurisdiction, holding that “under the current
law a sentencing court retaining jurisdiction at the time of the sentence is not enough to allow
a court to potentially set aside an adjudication of guilt at a later date.” Frost appeals.
STANDARD OF REVIEW
¶5. “Expungement is statutory in nature”; thus, we employ a de novo standard of review.
Robertson v. State, 158 So. 3d 280, 281 (¶3) (Miss. 2015).
DISCUSSION
I. Whether the trial court retained jurisdiction pursuant to Mississippi Code Annotated section 99-15-26 (Rev. 1994).
2 ¶6. Circuit courts do not have the inherent power to expunge criminal records, but they
can do so if statutorily authorized. Caldwell v. State, 564 So. 2d 1371, 1373 (Miss. 1990).
Frost admits that his embezzlement conviction is ineligible for expungement under
Mississippi Code Annotated section 99-19-71(2)(a)(x) (Rev. 2020), and he crafts an alternate
route in an effort to gain relief. In May 1996, Mississippi Code Annotated section 99-15-
26(1) (Rev. 1994) provided that “upon the entry of a plea of guilty by a criminal defendant,
[a circuit court can] withhold acceptance of the plea and sentence thereon pending successful
completion of such conditions as may be imposed by the court . . . .”
¶7. Paramount to the application of section 99-15-26(1) is the fact that a trial court can
withhold acceptance of a guilty plea and the sentencing of a criminal defendant. In this
instance, Frost’s guilty plea was accepted, he was adjudicated guilty, and he was sentenced.
Similar circumstances were present in Smith v. State, 869 So. 2d 425 (Miss. Ct. App. 2004).
Smith pled guilty, was sentenced to three years (suspended) and two years of probation, and
ordered to pay a $200 fine. Id. at 426 (¶3). Smith’s petition for expungement was denied
because the circuit court lacked jurisdiction at the time. Id. at 426 (¶4). On appeal, we held:
The court lacked jurisdiction to expunge Smith’s criminal record because the trial court did not withhold acceptance of her guilty plea . . . . Smith did not receive a non-adjudication of guilt from the trial court. Instead, the trial court sentenced Smith to regular probation. Because Smith was not sentenced pursuant to Section 99-15-26, her argument is without merit.
Id. at 428 (¶9); accord Wallace v. State, 607 So. 2d 1184, 1187 (Miss. 1992) (holding that
in section 99-15-26 proceedings, no guilty plea is accepted, and no sentence is imposed).
3 ¶8. We find that Smith is controlling. To the extent the trial court retained jurisdiction at
all, it was only for the purpose of supervising Frost’s probation. See Brown v. State, 872 So.
2d 96, 99 (¶13) (Miss. Ct. App. 2004) (holding that “[a]lthough Brown served the portion of
his sentence which was not suspended, he was not released from the jurisdiction of the
Benton County Circuit Court until the period of suspension expired”); see also Miss. Code
Ann. § 47-7-37 (Supp. 2018). As Frost admits, the probation order does not grant him a non-
adjudication. And the notice of criminal disposition shows a clearly marked box next to
“Suspended Sentence/Probation” and “Guilty Plea” and an unmarked box next to “Non-
Adjudication.”
¶9. Additionally, “[l]ongstanding authority holds ‘[o]nce a case has been terminated and
the term of court ends, a circuit court is powerless to alter or vacate its judgment,’ in the
absence of a statute authorizing modification of a sentence.” Ducote v. State, 970 So. 2d
1309, 1313 (¶7) (Miss. Ct. App. 2007) (quoting Presley v. State, 792 So. 2d 950, 954 (¶18)
(Miss. 2001)). Frost pled guilty in May 1996. It cannot be disputed that the term during
which Frost pled guilty and was sentenced had ended long before his petition to
reconsider/for expungement was filed in November 2020. Frost’s criminal case was
terminated, at the latest, on April 6, 1999, when he was discharged from probation. Frost
attempts to distinguish Mississippi Commission on Judicial Performance v. Russell, 691 So.
2d 929 (Miss. 1997), which the circuit court relied on when denying his petition. While he
is correct that the facts of Russell differ from those here, the Supreme Court’s ruling “that
4 circuit court judges have [no] inherent authority to modify sentences after the end of the term
of court during which the sentence [was] given[,]” still applies and the circuit court did not
err in so holding. Id. at 944.
II. Whether, pursuant to Sallie v. State, this Court may grant the circuit court jurisdiction to non-adjudicate Frost’s conviction.
¶10. Frost relies on Sallie v. State, 237 So. 3d 749 (Miss. 2018), in support of his argument
that this Court has the ability to grant the circuit court jurisdiction to review the adjudication
of his conviction. But the Mississippi Supreme Court’s holding in Sallie and the federal
cases cited in Sallie are distinguishable from Frost’s situation. In Sallie, the Supreme Court
held “that when an original sentence has been vacated for illegality, a subsequent sentencing
court has discretionary authority over the new sentence.” Id. at 754 (¶¶19-21). Frost never
appealed his sentence based on alleged illegality (or for any other reason), and he served it
to completion. Unlike Sallie’s case, Frost’s case was not remanded for re-sentencing, and
no grounds exist that would allow us to do so now. This issue is without merit.
III. Whether special circumstances exist that would allow this Court to grant the circuit court jurisdiction to non-adjudicate Frost’s conviction.
¶11. As an alternative to the theories discussed above, Frost suggests that special
circumstances exist that would allow us to confer jurisdiction on the circuit court so that the
adjudication of his sentence can be reconsidered. He lists several potential grounds in
support of his argument: (1) the original trial judge had “legal problems”; (2) his original
attorney had health problems; (3) he exhibits clear rehabilitation and exemplary character;
5 and (4) some of his co-defendants obtained non-adjudication when they pled, and their
records have been expunged. Frost includes no argument or legal authority in support of this
theory. Mississippi Rule of Appellate Procedure 28(a)(7) requires that the argument section
of an appellant’s brief “contain the contentions of appellant with respect to the issues
presented, and the reasons for those contentions, with citations to the authorities, statutes, and
parts of the record relied on.” This Court has consistently held that “[f]ailure to cite any
authority is a procedural bar, and [we are] under no obligation to consider the assignment.”
Taylor v. Kennedy, 914 So. 2d 1260, 1262 (¶4) (Miss. Ct. App. 2005) (citations omitted).
This issue is waived and lacks merit.
CONCLUSION
¶12. The trial court accepted Frost’s guilty plea and did not retain jurisdiction pursuant to
section 99-15-26. We find that Sallie is inapplicable in this instance because Frost never
challenged the legality of his sentence. There are no special circumstances present that
would allow us to confer jurisdiction on the circuit court. We accordingly affirm the ruling
of the circuit court, which properly denied Frost’s petition for reconsideration and
expungement.
¶13. AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR. WILSON, P.J., AND EMFINGER, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. SMITH, J., NOT PARTICIPATING.