Johson v. State
| Docket Number: | 2003-KP-00487-COA Linked Case(s): 2003-CT-00487-SCT ; 2003-CT-00487-SCT ; 2003-KP-00487-COA ; 2003-KP-00487-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-13-2004 Opinion Author: Southwick, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of cocaine - Excessive sentence - Section 41-29-139(b)(1) - Consecutive sentence - Improper suspension - Section 47-7-34 Judge(s) Concurring: King, C.J., Bridges, P.J., Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: Motion for Rehearing Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-21-2003 Appealed from: Jefferson Davis County Circuit Court Judge: R. I. Prichard, III Disposition: CONVICTED OF SALE OF A SCHEDULE II CONTROLLED SUBSTANCE. SENTENCED TO FIFTEEN YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT YEARS SUSPENDED AND A TERM OF FIVE YEARS ON POST-RELEASE SUPERVISION. SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE DEFENDANT NOW SERVING Case Number: K2000-79P |
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| Party Name: | Attorney Name: | |||
| Appellant: | Johnny Lee Johnson |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Sale of cocaine - Excessive sentence - Section 41-29-139(b)(1) - Consecutive sentence - Improper suspension - Section 47-7-34 |
| Summary of the Facts: | The former opinion in this appeal is withdrawn and this opinion is substituted. Johnny Johnson was convicted of selling cocaine. He was sentenced to fifteen years imprisonment, with eight years suspended and post-release supervision for five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Excessive sentence The sentence will not be disturbed as long as it does not exceed the maximum statutory period. Section 41-29-139(b)(1) provides for a maximum of thirty years imprisonment and a maximum million dollar fine. Johnson was sentenced to a term of fifteen years, with seven years to serve and eight years suspended. This sentence was well within the statutory range. Issue 2: Consecutive sentence Johnson argues that the imposition of a consecutive sentence on the eve of completion of his initial sentence deprived him of earned release, or "good time" credits. The sentence in this case would not affect such credits. Issue 3: Improper suspension Johnson argues that his sentence is illegal because previously convicted felons may not receive suspended sentences. Section 47-7-34 permits the giving of post-release supervision to a prior felon but contains no language permitting the suspension of a sentence. A section 47-7-34 sentence requires a specific term of incarceration, no suspended sentence or probation, and a specific term of post-release supervision of up to five years after incarceration, provided that the total of the two terms does not exceed the maximum sentence for the crime. Post-release supervision might be seen as a merger of the purposes of suspension and probation, since the term of supervision must come out of the unserved portion of the maximum prison term for the offense. Johnson had eight years of a fifteen year sentence suspended. Since the statute that permits post-release supervision does not contain language authorizing suspending sentences, and another statute bars suspension of sentences to prior felons, no suspension should be given. The sentence is modified only to the extent that the giving of a fifteen year sentence with eight years suspended is removed as surplusage. In all other respects the sentence is affirmed. |
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