Creel v. State
| Docket Number: | 2004-CT-01723-SCT Linked Case(s): 2004-CT-01723-SCT ; 2004-CA-01723-COA ; 2004-CA-01723-COA |
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| Supreme Court: | Opinion Link Opinion Date: 12-07-2006 Opinion Author: Waller, P.J. Holding: Vacated |
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| Additional Case Information: |
Topic: Post-conviction relief - Jurisdiction - Section 47-7-47(2)(a) - Revocation of release - Section 99-39-5(1) Judge(s) Concurring: Smith, C.J., Cobb, P.J., Diaz, Carlson, Dickinson and Randolph, JJ. Dissenting Author : Easley, J., Dissents Without Separate Written Opinion Concurs in Result Only: Graves, J. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF Writ of Certiorari: yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 08-02-2004 Appealed from: Jackson County Circuit Court Judge: Robert P. Krebs Disposition: Circuit Court of Jackson County dismissed Brian Wesley Creel’s motion for post-conviction relief for lack of jurisdiction. District Attorney: TONY LAWRENCE, III Case Number: 2004-00,159(1) |
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| Note: | The judgment of the Court of Appeals is vacated, and the judgment of the Jackson County Circuit Court is reversed and remanded. See the original COA opinion at http://www.mssc.state.ms.us/Images/OPINIONS/CO30322.PDF | |
| Party Name: | Attorney Name: | |||
| Appellant: | Brian Wesley Creel |
SAMUEL L. TUCKER, SR. |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE |
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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: | Post-conviction relief - Jurisdiction - Section 47-7-47(2)(a) - Revocation of release - Section 99-39-5(1) |
| Summary of the Facts: | Brian Creel entered pleas of guilty to multiple counts of burglary of a dwelling and grand larceny. He was sentenced to ten years for each count, with all sentences to run concurrently. In addition, the circuit court recommended that Creel participate in the Regimented Inmate Discipline program and retained jurisdiction of the case pending Creel's completion of the program. When Creel completed the RID program, the circuit court released him from the custody of the Mississippi Department of Corrections on his own recognizance pending a re-sentencing hearing. Because Creel suffered recurring medical problems and hospitalization, the hearing was continued several times, and ultimately never occurred. Several years later, Creel, still acting on his own recognizance, was detained pursuant to a traffic stop and again placed in the custody of the MDOC to serve the remainder of his original ten-year sentence. Creel filed a motion requesting post-conviction relief which the court denied. Creel appealed, and the Court of Appeals reversed and remanded. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | The circuit court interpreted section 47-7-47(2)(a) to prohibit the court from exercising jurisdiction over Creel for resentencing purposes because more than one year had elapsed since Creel’s placement in the MDOC’s custody. The court’s interpretation of section 47-7-47(2)(a) as pertaining to resentencing was erroneous, because the statute does not pertain to resentencing – it pertains only to a suspension of the further execution of a sentence and to the placement of the convicted felon on earned probation. Generally, a judge may not alter or vacate a sentence once the term of court in which the defendant was sentenced has ended. However, the Legislature created an exception to this general rule when it enacted the Uniform Mississippi Post-Conviction Collateral Relief Act. Section 99-39-5(1) provides for nine different claims for relief under the Act. Creel’s petition raises claims under subsection (e), that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice; and/or subsection (g), that his sentence has expired, his probation, parole or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody. Because Creel’s petition was filed under the Act, the circuit court erred in finding that it did not have jurisdiction and dismissing the petition. The incomplete record does not allow the Court to determine if, under section 99-39-5(1)(g), Creel’s release was unlawfully revoked. Therefore, this case is remanded to the circuit court for an expansion of the record under section 99-39-17; if necessary, an evidentiary hearing under section 99-39-19; and consideration of and a ruling on the merits of Creel’s petition. both the circuit court and the Court of Appeals erred when they applied section 47-7-47(2)(a). |
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