Smith v. State

94 So. 3d 335, 2011 WL 6034312, 2011 Miss. App. LEXIS 755
Court of Appeals of Mississippi·Decided December 6, 2011·No. No. 2010-CP-01150-COA·Published·Cited by 7 cases

Opinion

CARLTON, J.,

for the Court:

¶ 1. This case comes before the Court on appeal from a judgment dismissing Robert Smith’s motion for post-conviction relief (PCR). Aggrieved with the circuit court’s judgment, Smith appeals, asserting eight assignments of error: (1) whether Smith’s due-process rights were violated by the failure to afford him a preliminary revocation hearing, (2) whether the circuit court erred in finding no prejudice by the delay between Smith’s arrest and the date of his final revocation hearing, (3) whether the [338] circuit court erred in finding Smith had received sufficient notice of his alleged charges warranting revocation of his probation, (4) whether Smith’s due-process rights were violated by the circuit court’s failure to allow him to present evidence and witnesses in his favor at the revocation hearing, (5) whether the circuit court erred in failing to appoint Smith counsel to assist at his revocation hearing, (6) whether the circuit court erred in failing to grant Smith relief after Smith claimed his probation officer withheld exculpatory evidence from the court during the revocation hearing, (7) whether the circuit court erred in denying Smith’s PCR motion when Smith asserted that the probation officer revoked Smith’s probation solely because of Smith’s change of residence, and (8) whether the circuit court erred in denying Smith relief after Smith claimed he did not commit any crime while on probation. Finding no error, we affirm.

FACTS

¶ 2. On February 5, 2001, the Sunflower County Circuit Court found Smith guilty of armed robbery and subsequently sentenced Smith to ten years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended. The five-year suspension was based on Smith’s compliance with five years of post-release supervision.1

¶ 3. Smith was arrested on August 20, 2009, due to his failure to comply with the terms of his post-release supervision, and he was placed in the Bolivar County Jail. On the violation-report form, Smith’s probation officer, Linda Jett-Smith, listed the following parole violations committed by Smith: failure to report to his parole officer, failure to pay supervision fees, failure to submit to a chemical analysis, and failure to pay court-ordered costs. Jett-Smith also noted that Smith no longer lived at his mother’s house. On August 20, 2009, Smith was transferred to the Sunflower County Jail.

¶ 4. On August 27, 2009, Smith signed a waiver in which he waived his right to a preliminary probation revocation hearing. On October 2, 2009, the Sunflower County Circuit Court held a revocation hearing wherein the circuit judge determined that Smith had violated the terms of his post-release supervision. The circuit judge ordered Smith to serve five years in the custody of the MDOC.

¶ 5. Smith filed a motion for reinstatement of probation, which the circuit court treated as a PCR motion, seeking to have the court set aside its revocation order and place Smith back on post-release supervision. The circuit court dismissed Smith’s motion on May 28, 2010. This appeal followed.

STANDARD OF REVIEW

¶ 6. The standard of review for a dismissal of a PCR motion is well stated: “The findings of the trial court must be clearly erroneous in order to overturn a lower court’s dismissal of a post-conviction relief motion.” Willis v. State, 904 So.2d 200, 201 (¶ 3) (Miss.Ct.App.2005) (citing McClinton v. State, 799 So.2d 123, 126 (¶ 4) (Miss.Ct.App.2001)). However, when issues of law are raised, the proper standard of review is de novo. Byrom v. State, 978 So.2d 689, 690 (¶ 5) (Miss.Ct.App.2008) (citing Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999)).

DISCUSSION

I. Preliminary Hearing

¶ 7. As his first assignment of error, Smith asserts that his due-process [339] rights were violated by the revocation of his post-release supervision because the circuit court denied him a preliminary hearing for the revocation of his post-release supervision. A defendant facing revocation of probation is constitutionally entitled to a preliminary hearing in which a hearing officer determines whether probable cause exists to hold the defendant for a final decision concerning revocation; however, the defendant may waive the right to a preliminary hearing and elect to proceed to the final revocation hearing. Grayson v. State, 648 So.2d 1129, 1133 (Miss.1994); Riely v. State, 562 So.2d 1206, 1210 (Miss.1990).

¶ 8. The State argues Smith waived his right to a preliminary revocation hearing to be held prior to his formal revocation hearing because he signed a waiver wherein he relinquished this right. Smith acknowledges that he signed a waiver document, but he claims that JetWSmith coerced him into signing the document. Smith also claims he failed to read the document, and he states that he was unaware of what he was signing.

¶ 9. This Court addressed a similar issue in Crowell v. State, 801 So.2d 747, 750-51 (¶¶ 10-11) (Miss.Ct.App.2000), wherein Kelvin Crowell signed a waiver of his right to a preliminary revocation hearing. This Court found that since Crowell signed the waiver and was a afforded a petition setting forth his probation violations, Crowell had received notice of his alleged violations. Id. The Crowell court also held that Crowell had an opportunity to defend himself against the charge. Id. This Court ultimately found that no violation of Cro-well’s due-process rights occurred, acknowledging that Crowell had signed a waiver and, therefore, had waived his rights to a preliminary revocation hearing. Id.; see also Williams v. State, 4 So.3d 388, 394-95 (¶¶ 24-27) (Miss.Ct.App.2009) (This Court found no denial of due-process rights wherein Anthony Williams signed a waiver to a revocation hearing; the Court found that Williams had received notice and an opportunity to be heard.).

¶ 10. In the present case, the record reflects that Smith indeed signed a waiver wherein he waived his right to a preliminary probation-revocation hearing. The State argues Smith makes no claim that he lacked the ability to read or that the signature on the waiver form was not his signature. Additionally, the record reflects no evidence of coercion by Jet1>-Smith. We thus find Smith voluntarily waived his right to a preliminary hearing and that there was no violation of Smith’s due-process rights. This issue is without merit.

II. Written Notice

¶ 11. Smith next claims that under Riely, 562 So.2d at 1210, he was entitled to receive . written notice of the alleged charges against him warranting the revocation of his post-release supervision. In Riely, the supreme court set forth the minimal due-process requirements for probation-revocation hearings, which include:

Free access — add to your briefcase to read the full text and ask questions with AI

Smith v. State, 94 So. 3d 335, 2011 WL 6034312, 2011 Miss. App. LEXIS 755 (Mich. Ct. App. 2011).

94 So. 3d 335 (Smith v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Alexander Buchanan v. State of Mississippi
Court of Appeals of Mississippi, 2023
Keith Thayer v. State of Mississippi
Court of Appeals of Mississippi, 2021
Justin Dale Peterson v. State of Mississippi
Court of Appeals of Mississippi, 2020
Curtis C. Evans v. State of Mississippi
188 So. 3d 1256 (Court of Appeals of Mississippi, 2016)
Antonio Vashon Smith v. State of Mississippi
196 So. 3d 986 (Court of Appeals of Mississippi, 2015)
Robertson v. State
169 So. 3d 910 (Court of Appeals of Mississippi, 2014)
Holder v. State
137 So. 3d 884 (Court of Appeals of Mississippi, 2013)