Necaise v. State
| Docket Number: | 2009-CP-01710-COA Linked Case(s): 2009-CP-01710-COA ; 2009-CT-01710-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-01-2011 Opinion Author: King, C.J. Holding: Affirmed in part, reversed in part. |
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| Additional Case Information: |
Topic: Post-conviction relief - Post-release supervision conditions - Section 47-7-35(1) Judge(s) Concurring: Lee, P.J., Myers, P.J., Irving, Griffis, Barnes, Ishee and Carlton, JJ. Concur in Part, Concur in Result 1: Roberts, J. Without Separate Written Opinion Concurs in Result Only: Maxwell, J. Without Separate Written Opinion Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 10-01-2009 Appealed from: Harrison County Circuit Court Judge: Lawrence Paul Bourgeois Disposition: Motion for Post-Conviction Relief Denied Case Number: A2401-09-017 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Carl Douglas Necaise |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART | ||
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 - Post-release supervision conditions - Section 47-7-35(1) |
| Summary of the Facts: | The circuit court revoked Carl Necaise’s post-release supervision for entering a casino, consuming an alcoholic beverage at the casino, and playing $27,000 at the casino. Necaise filed a motion for post-conviction relief, arguing that his post-release supervision was unlawfully revoked. The circuit court denied the motion. Necaise appeals. |
| Summary of Opinion Analysis: | Necaise argues that his post-release-supervision conditions did not state that he could not visit casinos, and the prohibition bears no relation to his crime. The circuit court is responsible for specifying the terms and conditions upon which post-release supervision or a suspended sentence are contingent. The circuit court followed the language of section 47-7-35(1) when constructing Necaise’s post-release-supervision conditions, with a few additions. The circuit court may revoke a person’s post-release supervision upon a showing that the defendant more likely than not violated the terms of post-release supervision. However, it is necessary for that court to base its revocation on the violation of the clear terms and conditions of the suspended sentence. There are no Mississippi cases that specifically address whether a prohibition against visiting a casino is an appropriate condition of probation or post-release supervision. However, there have been at least two instances where a prohibition on casinos or gambling was imposed as a condition of probation. The State maintains that the post-release-supervision condition instructing Necaise to “avoid injurious and vicious habits” and to “avoid places of disreputable or harmful character” sufficiently notified Necaise to stay away from casinos. It is appropriate for the circuit court to preclude a defendant from doing a legal act so long as it bears a nexus to his crime of conviction, and he is given adequate notice of the prohibition. But there is no nexus between Necaise’s conviction for touching a child for lustful purposes and the prohibition on visiting a casino; and most importantly, the circuit court did not give Necaise adequate warning that his post-release supervision could be revoked for visiting a casino. The circuit court must put the condition in writing. Thus, the circuit court’s decision to revoke Necaise’s post-release supervision for visiting a casino was reversible error. Because Necaise admitted that he was intoxicated when he committed his crime, there is a nexus between Necaise’s conviction of touching a child for lustful purposes and his post-release-supervision condition prohibiting him from drinking alcoholic beverages. In its petition to revoke Necaise’s post-release supervision, the State claimed that Necaise was drinking beer at the casino. Necaise argued that he was drinking O’Doul’s, which is a non-alcoholic beer. The officer testified that he asked the waitresses whether they sold O’Doul’s beer, and the waitresses indicated that “nobody really orders them.” The officer also provided video evidence and still shots of Necaise at the casino carrying a can. This is not evidence that Necaise was drinking an alcoholic beverage. Thus, the evidence was insufficient to prove that Necaise more likely than not violated his post-release supervision. Because Necaise claimed that he was financially unable to pay his supervision fees, the circuit court waived the fees. According to Necaise’s player’s card records, he gambled nearly $27,000 at the casino. Necaise explained that his friends use his player’s card sometimes. To refute Necaise’s testimony, the officer provided the circuit court with video and still shots of Necaise inserting bills into a slot machine. Since the evidence is sufficient to prove that Necaise, more likely than not, misled the circuit court regarding his inability to pay his supervision fees, the circuit court did not err by revoking Necaise’s post-release supervision on this ground. |
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