Smith v. State


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Docket Number: 2010-CP-01150-COA
Linked Case(s): 2010-CP-01150-COA ; 2010-CT-01150-SCT

Court of Appeals: Opinion Link
Opinion Date: 12-06-2011
Opinion Author: Carlton, J.
Holding: Affirmed.

Additional Case Information: Topic: Post-conviction relief - Preliminary hearing - Written notice - Prejudice by delay - Revocation hearing - Right to counsel - Misrepresentation by probation officer - Additional crimes
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Maxwell and Russell, JJ.
Non Participating Judge(s): Myers, J.
Procedural History: PCR
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 05-28-2010
Appealed from: Sunflower County Circuit Court
Judge: W. Ashley Hines
Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED
Case Number: 2010-0001-M

  Party Name: Attorney Name:  
Appellant: Robert Smith




PRO SE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY JR.  

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Topic: Post-conviction relief - Preliminary hearing - Written notice - Prejudice by delay - Revocation hearing - Right to counsel - Misrepresentation by probation officer - Additional crimes

Summary of the Facts: In 2001, the Sunflower County Circuit Court found Robert Smith guilty of armed robbery and subsequently sentenced Smith to ten years, with five years suspended. The five-year suspension was based on Smith’s compliance with five years of post-release supervision. Smith was arrested in 2009, due to his failure to comply with the terms of his post-release supervision. Smith signed a waiver in which he waived his right to a preliminary probation revocation hearing. The court held a revocation hearing wherein the circuit judge determined that Smith had violated the terms of his post-release supervision. The circuit judge ordered Smith to serve five years. Smith filed a motion for reinstatement of probation, which the circuit court treated as a post-conviction relief motion, seeking to have the court set aside its revocation order and place Smith back on post-release supervision. The circuit court dismissed Smith's motion. Smith appeals.

Summary of Opinion Analysis: Issue 1: Preliminary hearing Smith argues that his due-process rights were violated by the revocation of his post-release supervision because the circuit court denied him a preliminary hearing for the revocation of his post-release supervision. A defendant facing revocation of probation is constitutionally entitled to a preliminary hearing in which a hearing officer determines whether probable cause exists to hold the defendant for a final decision concerning revocation; however, the defendant may waive the right to a preliminary hearing and elect to proceed to the final revocation hearing. Smith acknowledges that he signed a waiver document, but he claims that he was coerced into signing the document, that he failed to read the document, and that he was unaware of what he was signing. The record shows no evidence of coercion. And, as noted by the State, Smith makes no claim that he lacked the ability to read or that the signature on the waiver form was not his signature. Issue 2: Written notice Smith argues that he was entitled to receive written notice of the alleged charges against him warranting the revocation of his post-release supervision. The State must give prior notice of the grounds upon which it contends post-release supervision should be revoked, and the notice must be specific and timely so as to allow an individual to mount a defense and the opportunity to gather and present any evidence tending to show that revocation is improper. As the circuit judge acknowledged in his order denying Smith’s PCR motion, the document Smith signed, wherein he waived his right to a preliminary revocation hearing, also set forth the allegations against Smith. Thus, the record reflects that Smith received proper notice of the charges against him. Issue 3: Prejudice by delay Smith argues that the circuit court erred in failing to find that Smith was prejudiced by the delay between his arrest and the date of the revocation hearing. The delay between Smith’s arrest and the date of his revocation hearing, a seventy-seven day time period between the date of his arrest and the date of the hearing, is not so excessive that it warrants setting aside the revocation. Issue 4: Revocation hearing Smith argues the circuit court failed to advise him that he was allowed to present evidence and witnesses in his favor at the revocation hearing. There is no evidence in the record showing the circuit judge prevented Smith from calling witnesses or presenting evidence at his revocation hearing. The transcript from the revocation hearing reflects that the circuit judge afforded Smith the opportunity to respond to the charges against him, but Smith failed to do so. Issue 5: Right to counsel Smith argues the circuit court denied him his constitutional right to court-appointed counsel at his revocation hearing. Defendants do not necessarily have a right to counsel at probation-revocation hearings. However, when the issues relevant to the hearing are complex or difficult to develop, the court should appoint counsel for the defendant. As the State points out, the decision to revoke Smith's probation turned simply on whether or not he had committed the violations of which he was accused. Smith fails to provide any affidavits or actual proof that he lacked mental competence during the time he failed to comply with the terms or conditions of his post-release supervision or that he lacked mental competency at his probation-revocation hearing. Issue 6: Misrepresentation by probation officer Smith argues that his probation officer withheld exculpatory evidence from the circuit court and misrepresented facts during his revocation hearing. There is no evidence in the record to substantiate Smith’s allegations. It is clear from the transcript that the probation officer advised the circuit judge that Smith failed to pay his court-ordered fees and also failed to report to her. Additionally, the transcript from the revocation hearing reflects the circuit judge afforded Smith the opportunity to respond to the charges against him, but Smith failed to do so. Issue 7: Additional crimes Smith argues that he did not commit an additional crime while on post-release supervision and should have been entitled to consideration of an alternative to incarceration. However, the record is clear that Smith violated other probation requirements besides his failure to report to his probation officer. The circuit court set out terms and conditions to which Smith was to adhere, and any violation of those conditions was a violation of his post-release supervision. A violation of these conditions gave the circuit court the authority to revoke Smith’s post-release supervision and remand him back into the custody of the MDOC to serve the remainder of his term.


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