Whitaker v. State
| Docket Number: | 2008-CP-00584-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-03-2009 Opinion Author: KING, C.J. Holding: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART |
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| Additional Case Information: |
Topic: Post-conviction relief - Revocation of probation - Excessive sentence - Section 47-7-34(1) - Appointment of counsel - Ineffective assistance of counsel Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 03-14-2008 Appealed from: MARSHALL COUNTY CIRCUIT COURT Judge: Andrew K. Howorth Disposition: POST-CONVICTION RELIEF - DENIED Case Number: CR07-023 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JEROME WHITAKER |
JEROME WHITAKER (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS | ||
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: | Post-conviction relief - Revocation of probation - Excessive sentence - Section 47-7-34(1) - Appointment of counsel - Ineffective assistance of counsel |
| Summary of the Facts: | Jerome Whitaker filed a pro se motion for post-conviction relief to set aside his sentence. The motion was denied by the trial court. Whitaker appeals. |
| Summary of Opinion Analysis: | Issue 1: Revocation of probation Whitaker argues that his probation revocation was illegal because it was based solely on a positive urine test rather than the stated alleged violations and that the State failed to prove any of the alleged violations. Probation may be revoked upon a showing that the defendant more likely than not violated the terms of probation. The order of revocation found that Whitaker had violated the terms of his post-release supervision by engaging in injurious habits, associating with persons of disreputable character, having no suitable residence of record, and failing to pay supervision fees. During the revocation hearing, Whitaker’s probation officer testified that Whitaker had failed to report to his probation officer as required, failed to receive authorization to reside in Tennessee while on probation, and resided in Tennessee with his brother, who had an outstanding warrant for burglary of an automobile. An officer also stated that Whitaker’s drug test indicated the presence of cocaine in his system. Thus, there was sufficient evidence presented to the trial court to establish Whitaker’s violation of his probation. Issue 2: Excessive sentence Whitaker’s original sentence was for a term of five years, with all five years suspended, and five years’ post-release supervision. However, at the end of the revocation hearing, the trial judge stated his intent to revoke Whitaker’s probation and sentenced Whitaker to five years with two years suspended and three years to serve, followed by two years’ post-release supervision. The actual revocation order sentenced Whitaker to five years with two years suspended and three years to serve, and included a handwritten addendum which stated that the “offender shall be placed on three years’ post-release supervision following his term of incarceration.” Pursuant to section 47-7-34(1), the total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed. Whitaker’s sentence as stated by the trial judge at the conclusion of the probation revocation hearing did not exceed the statutory maximum allowed under section 47-7-34(1). However, the handwritten addendum to the revocation order caused the new sentence to exceed the five-year maximum sentence. The appropriate resolution of this matter is to remand this case to the trial court to correct the clerical error. Issue 3: Appointment of counsel Whitaker argues that the trial court erred by not appointing counsel to represent him during his probation revocation hearing. Because Whitaker failed to raise this issue before the trial court in his motion for post-conviction relief, this argument is procedurally barred. Issue 4: Ineffective assistance of counsel Whitaker argues that his former defense counsel failed to inform the trial court that Whitaker had registered as a sex offender in Tennessee and Mississippi. It takes only one violation to serve as a basis for revocation. The trial court found several violations. |
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