Leech v. State


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Docket Number: 2007-CP-00566-COA
Linked Case(s): 2007-CP-00566-COA ; 2007-CT-00566-SCT

Court of Appeals: Opinion Link
Opinion Date: 07-22-2008
Opinion Author: CARLTON, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Time bar - Section 99-39-5(2) - Revocation of probation - Ineffective assistance of counsel - Double jeopardy - Section 47-7-37
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ.
Procedural History: Dismissal; PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 03-05-2007
Appealed from: LOWNDES COUNTY CIRCUIT COURT
Judge: Lee J. Howard
Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED
Case Number: 2006-148-CV1

  Party Name: Attorney Name:  
Appellant: WILLIE LEECH




WILLIE LEECH (PRO SE)



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER  

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Topic: Post-conviction relief - Time bar - Section 99-39-5(2) - Revocation of probation - Ineffective assistance of counsel - Double jeopardy - Section 47-7-37

Summary of the Facts: Willie Leech pled guilty to accessory before the fact of armed robbery. He received a twenty-year suspended sentence and was placed on supervised probation for a period of five years. After testing positive for illegal drugs, Leech’s probation was modified. Leech was later charged with failing to report to his probation officer, failing to pay supervision fees, and again testing positive for illegal drugs. A revocation hearing was held, at which Leech admitted that he violated the terms of his probation as set forth in the revocation petition. Leech also stated that he wished to waive a hearing in the matter. The judge ordered that Leech’s twenty-year sentence be reinstated. Leech filed a motion for post-conviction relief which was dismissed. Leech appeals.

Summary of Opinion Analysis: Issue 1: Time bar Leech argues that the court erred in dismissing his motion for post-conviction relief as time-barred. A post-conviction claim alleging unlawful revocation of probation is not subject to the time bar of section 99-39-5(2). Because Leech’s motion for post-conviction relief alleged that his probation had been unlawfully revoked and that his suspended sentence had been unlawfully reinstated, the court erred in dismissing Leech’s motion as time-barred. Issue 2: Revocation of probation Leech argues that the trial court lacked authority to revoke his probation and reinstate his suspended sentence because his five-year probationary period had expired at the time his probation was revoked. Leech’s five-year probationary period began to run on May 12, 1988, when he was released on supervised probation following suspension of the original sentence. Therefore, his probationary period expired on May 12, 1993. Although a revocation petition was filed in the circuit court on May 30, 1990, Leech was not served with the petition or arrested until May 2006, and his probation was not revoked until August 8, 2006. Probation may be lawfully revoked beyond the probationary period if a revocation petition is filed prior to the end of the probationary period – an act deemed to “toll” the running of the probationary period – and the State acts on the petition within a reasonable time. In this case, the State acted on the petition within a reasonable amount of time. Leech fled the jurisdiction to Pennsylvania upon his release from the Lowndes County Jail in 1990, and he remained there until he returned to Lowndes County, shortly before he was served with the revocation petition and arrested in May 2006. At the revocation hearing, Leech admitted that he violated the terms of his probation, and he moved to Pennsylvania. Further, Leech stated that he wished to waive a hearing in the matter. On these facts, his probation was lawfully revoked. Issue 3: Ineffective assistance of counsel Leech argues that he was denied effective assistance of counsel at his revocation hearing, because his attorney failed to raise the question of the timeliness of the revocation. Beyond Leech’s bare assertions, the record contains absolutely no evidence tending to establish his claim. Issue 4: Double jeopardy Leech argues that his right against double jeopardy was violated when the trial court reinstated his twenty-year suspended sentence. Section 47-7-37 provides that, when a defendant is found to have violated the conditions of his probation/suspended sentence, the court may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction. Double jeopardy is violated only if the court attempts to administer a longer sentence than what was originally conferred upon the defendant. Where as here, the court reinstates a suspended sentence already levied on the defendant, no violation of double jeopardy occurs.


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