Timothy T. Hobson v. State of Mississippi

230 So. 3d 1096
CourtCourt of Appeals of Mississippi
DecidedMarch 28, 2017
Docket2016-CP-00308-COA
StatusPublished
Cited by3 cases

This text of 230 So. 3d 1096 (Timothy T. Hobson v. State of Mississippi) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Timothy T. Hobson v. State of Mississippi, 230 So. 3d 1096 (Mich. Ct. App. 2017).

Opinion

BARNES, J.,

FOR THE COURT:

¶ 1. Timothy Hobson, appearing pro se, appeals the Rankin County Circuit Court’s dismissal of his motion for post-conviction relief (PCR), which was filed after his probation was revoked for failure to report to his probation officer. He was sentenced to serve the full twelve years of his suspended sentence. Claiming the applicability of Mississippi Code Annotated section 47-7-37 (Rev. 2015), Hobson argues that the circuit court erred in the- imposition of his suspended sentence, as this was his first technical violation of probation. Finding no error, however, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2006, Hobson was indicted in the Rankin County Circuit Court for one count of possession of cocaine and considered subject to enhanced punishment as a second or subsequent offender under the Uniform Controlled Substances Law. In January 2009, Hobson pleaded guilty to the charge and was sentenced to serve sixteen years in the custody of the Mississippi Department of Corrections (MDOC), with four years to serve, five years of supervised post-release supervision, and seven years of unsupervised post-release supervision.

¶3. In June 2013, Hobson’s probation field supervisor filed a petition to revoke Hobson’s probation because Hobson had failed to report since April 2013, and had failed to pay fees and court costs. An accompanying affidavit and warrant for Hobson’s arrest were also filed. Over two years later, on September 15, 2015, Hob- *1098 son’s field supervisor filed a petition to dismiss the 2013 arrest warrant and revocation petition because Hobson had not been located and arrested within thirty days of the warrant’s validity, nor had the revocation hearing occurred within thirty days of the warrant’s issuance, as required by statute. 1 The circuit court granted the petitions, and on the same day the field officer filed a new petition for revocation, an affidavit, and an arrest warrant for the same probation violations of failure to report since April 2013, and failure to pay fees and court costs. On September 18, 2015, copies of the revocation petition and order setting a revocation hearing with Hobson’s signature were filed, indicating he was in custody on that date.' At the revocation hearing on September 28, 2015, the circuit court found Hobson in violation of the terms and conditions of his post-release supervision due to failure to report since April 2013, and revoked his probation.

¶ 4. In January 2016, Hobson filed a PCR motion to set aside and vacate his sentence and the revocation of his post-release supervision. Hobson argued that failure to report is considered a “technical violation” under House Bill 585, passed into law on July 1, 2014. 2 Hobson also argued that his post-release supervision was illegal because it exceeded five years under section 47-7-37(1). The circuit court dismissed Hobson’s PCR motion as time-barred and without merit. Hobson timely appealed.

STANDARD OF REVIEW

¶ 5. When an appellate court reviews the circuit court’s dismissal of a PCR motion, it “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Davis v. State, 141 So.3d 948, 950 (¶ 7) (Miss. Ct. App. 2014) (citation omitted). Questions of law are reviewed de novo. Id.

ANALYSIS

¶ 6. Hobson raises three issues: (1) whether his PCR motion was time-barred, (2) whether his post-release supervision was illegally revoked because of a mere technical violation, and (3) whether his post-release supervision was illegal because it exceeded five years.

¶ 7. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Hobson’s PCR motion was filed approximately seven years.after he pleaded guilty in January 2009. Accordingly, unless the motion falls within a statutory exception, it is time-barred.

¶ 8. Hobson raises two arguments to circumvent the time-bar, but they are without merit. First, Hobson argues the revocation of his post-release supervision and imposition of his twelve-year suspended sentence were improper in light of House Bill 585’s amendments to sections 47-7-2(q) and 47-7-37, effective July 1, 2014, which in part established technical-violation procedures and centers in the MDOC. Hobson claims failure to report is merely a “technical violation,” and under section 47-7-37(5)(a) as amended, he should have been imprisoned for ninety days in a technical-violation or restitution center operated by the MDOC, instead of *1099 having his suspended sentence fully reinstated and served in a correctional facility.

¶ 9. Both applicable code sections, 47-7-37(5)(a) and 47-7-2(q), were added by House Bill 585, and passed into law, during the 2014 regular legislative session. Section 47-7-37(5)(a) currently states: “If the court revokes probation for a technical violation, the court 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 technical violation .... ” Section 47-7-2(q) defines “technical violation” 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.”

¶ 10. The State responded that reinstatement of Hobson’s suspended sentence was proper, citing Mississippi Code Annotated section 47-7-34(2) (Rev. 2015): “Failure to successfully abide by the terms and conditions [of post-release supervision] shall be grounds to terminate [it] and to recommit the defendant to the correctional facility from which he was previously released.” The section states, however, that “[procedures for termination and recom-mitment shall be conducted in the same manner as ... the revocation of probation and imposition of a suspended, sentence as required [under] Section 47-7-37.” Therefore, it appears that the technical-violation provision of section 47-7-37 would be applicable to matters, under section 47-7-34(2). The State further claims that because Hobson’s revocation order did not specifically state he committed a “technical violation” for failure to report, the revocation of his probation and reinstatement of his suspended sentence were proper. We find this argument incorrect; applicability of the technical-violation punishment cannot be based solely on whether the term is included in the order.

¶ 11. What neither party cites is section 47-7-37.1, effective April 20, 2015, which states that “[notwithstanding any other provisions,” if a probationer or person under post-release supervision absconds, “the court may revoke his probation and impose any or all of the sentence.... ‘Absconding from supervision’ means the failure of a probationer to report to his supervising officer for six or more consecutive months.” Miss. Code Ann. § 47-7-37.1 (Rev. 2015).

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Bluebook (online)
230 So. 3d 1096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timothy-t-hobson-v-state-of-mississippi-missctapp-2017.