Shinn v. State


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Docket Number: 2010-CP-00089-COA

Court of Appeals: Opinion Link
Opinion Date: 11-01-2011
Opinion Author: Roberts, J.
Holding: Reversed, rendered and remanded

Additional Case Information: Topic: Post-conviction relief - Restructuring sentence - Section 99-19-21(1) - Consecutive sentence - Concurrent sentence - Jurisdiction - Revocation hearing
Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers, Ishee, Carlton, Maxwell and Russell, JJ.
Concur in Part, Concur in Result 1: Irving, P.J.
Concurs in Result Only: Barnes, J.
Procedural History: PCR
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 12-04-2009
Appealed from: Lowndes County Circuit Court
Judge: Lee J. Howard
Disposition: MOTION FOR POST -CONVICTION RELIEF DISMISSED
Case Number: 2009-0032-CV1

  Party Name: Attorney Name:  
Appellant: Jimmy Shinn




PRO SE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE  

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Topic: Post-conviction relief - Restructuring sentence - Section 99-19-21(1) - Consecutive sentence - Concurrent sentence - Jurisdiction - Revocation hearing

Summary of the Facts: Jimmy Shinn pled guilty to two counts of uttering a forgery. He was sentenced in Count I to four years followed by five years of post-release supervision. He was also ordered to pay $1,265 in restitution and court costs. On Count II, Shinn was sentenced to four years and five years of PRS. He was ordered to pay a fine of $750. At the conclusion of the sentencing hearing, the circuit judge stated that the sentences were to run consecutively. However, neither sentencing order specified whether the sentences were concurrent or consecutive to one another. The MDOC interpreted the silent sentencing orders to run concurrently, so on July 4, 2007, Shinn was fully discharged by the MDOC due to the expiration of his custodial sentences of four years on both Counts I and II. An official discharge certificate from the MDOC indicating Shinn’s completion of his two, four-year custodial sentences appears in the record. Thereafter, Shinn began his five-year PRS portions of the sentences under the circuit court's jurisdiction. During the first year of that five-year period, Shinn violated the conditions of his PRS; and on November 24, 2008, the circuit judge held a hearing and revoked Shinn's PRS on both counts. The circuit judge entered two partial revocation orders. On Count I, Shinn was ordered to serve two-and-one-half years in the custody of the MDOC and then complete two-and-one-half years on PRS. The circuit judge ordered the same for Count II, but he further stated that the sentence on Count II was to run consecutively to the revocation of Count I. In effect, Shinn was required to serve five more years in the custody of the MDOC with five years thereafter on PRS. In response to Shinn's pro se motions to modify his revocation sentences and convince the circuit judge that his original sentences could not be changed to consecutive at the revocation hearing, the circuit judge entered an order stating that the original sentences were to run concurrently, but at the revocation hearing, the sentences could, in the circuit court's discretion, be changed to run consecutively. Shinn filed his pro se motion for post-conviction relief. The circuit judge summarily dismissed Shinn's pro se PCR motion and again stated, in a written order, that the original sentences were ordered to run concurrently. Shinn appealed. Inexplicably, and after the appeal had been perfected and the record designated by Shinn, the circuit judge, sua sponte, entered another order on February 17, 2010, stating that the original sentences were ordered to run consecutively.

Summary of Opinion Analysis: Shinn argues that the circuit court erred by restructuring the sentence imposed from concurrent to consecutive, thereby increasing the total term of imprisonment imposed and subjecting him to double jeopardy. Since 1983, the language of section 99-19-21(1) no longer contains a presumption that multiple sentences are to run consecutively. Pursuant to the current statute, when sentencing orders from a circuit court on the same defendant cover multiple felony convictions, the circuit judge has discretion to order the sentences to run either concurrently or consecutively. Although a circuit judge now has discretion on how to run the sentences, once the circuit judge pronounces a sentence in a felony case, a sentencing order is entered of record, and the term of court expires, the circuit judge is without jurisdiction to change or modify that sentence at a later time. It follows that once a circuit judge sentences a defendant on multiple felonies, orders those convictions to be served concurrently or consecutively, and the term of court expires, the circuit judge is without jurisdiction to change those sentences including their concurrent or consecutive nature. In this case, the original sentencing orders are silent as to their consecutive or concurrent nature, but the circuit judge altered the sentencing orders at Shinn’s revocation hearing to run the sentences consecutively. His attempt to do so is too late. Since there is no longer a statutory presumption that multiple sentences are to run consecutively, Shinn's silent sentencing orders are not automatically construed as consecutive. When an oral pronouncement of a sentence conflicts with the written pronouncement, the written pronouncement prevails. Thus, once Shinn perfected his appeal of the December 4, 2009 judgment, the circuit judge had no jurisdiction to enter an order modifying or amending that judgment, and any such attempt is null and void. Since the sentencing orders are the final judgments, the orders are silent as to whether the sentences were ordered to run consecutively or concurrently, and since the circuit judge entered two separate orders prior to the appeal stating that the sentences were concurrent, they were, in fact, concurrent. Shinn's silent sentencing orders are not ambiguous in their terminology and must be construed consistently with the majority rule to run concurrently. An additional, logical reason exists requiring reversal of the circuit court’s revocation of Shinn’s PRS on Count II. Even if the circuit judge had originally ordered consecutive sentences, Shinn could not have been serving his five-year term of PRS on Count II when he violated the conditions of the PRS under Count I. If Shinn’s two sentences were ordered to run consecutively at the initial sentencing as the circuit judge now claims, Shinn would have begun his first five-year term of PRS immediately after his discharge from the custody of the MDOC. Shinn's PRS sentence on Count II would not have begun to run until Shinn had completed his five years of PRS on Count I on July 4, 2012. As a result, the circuit judge cannot revoke Shinn's PRS sentence on Count II since he was not serving that portion of his sentence at the time he violated the conditions of the PRS under Count I. The sentences given to Shinn at his revocation hearing are reversed, and this matter is remanded to the circuit court to conduct a new sentencing hearing and to impose lawful concurrent sentences based on Shinn's violation of the conditions of his PRS under Counts I and II.


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