Davis v. State

¶1concurring in part and in result:

¶2¶ 16. I concur in result and in part with the opinion of the majority. I concur with the majority that the circuit court possessed authority to revoke Davis’s post-release supervision based upon an incident occurring after he was placed on post-release supervision.1 This finding by the Court resolves the issue on appeal in this case.

¶3¶ 17. I respectfully submit however that the majority’s further comment that post-release supervision cannot be revoked for an incident occurring while on ERS to be overly broad and also unnecessary to the disposition of the case before us. As previously stated, the circuit court herein revoked Davis’s post-release supervision due to misconduct that occurred after Davis was placed on post-release supervision, *952and no “incident” occurring while on ERS is at issue before us in this case.

¶4¶ 18. I respectfully submit that the majority’s opinion over broad in finding that the circuit court possessed no jurisdiction for “incidents” occurring while the defendant was on ERS, since jurisdiction of the circuit court depends on whether the “incident” at issue constituted felonious criminal misconduct that violated the terms and conditions of the suspension or post-release supervision. The conditions of a sentence suspended by the circuit court would not include mere technical violations of the ERS-program rules that fail to constitute felonious misconduct in violation of stated conditions. If a defendant engaged in criminal, felonious misconduct while on ERS that violates the previously imposed conditions of his suspension, then the sentencing circuit court would certainly possess jurisdiction to revoke the suspended sentence for commission of such felonious conduct.2 If the misconduct simply constitutes a mere violation of the MDOC’s ERS program, and not a felony offense violating the previously imposed conditions of suspension, then I agree that such a technical rule violation falls within the province of the MDOC to determine.

¶5¶ 19. I certainly agree that the MDOC possesses authority to operate and implement the MDOC intensive supervision program and its ERS program, as well as authority to determine violations of the rules of these programs by offenders. However, the MDOC’s statutory authority to regulate its programs for offenders fails to divest the circuit court of its original jurisdiction to determine if the lawful conditions of a suspended sentence were breached by any felonious conduct of an offender. If a sentencing circuit court bases a suspended sentence, or post-release supervision, upon a condition of good behavior, a defendant thereafter breaches that condition by the commission of a crime.3 As acknowledged by our supreme court in Fuller v. State, 57 So. 6, 8 (Miss.1912), the sentencing trial court possesses inherent power to suspend a sentence on the condition of good behavior — and that condition is violated by any subsequent criminal conduct by the defendant.4See also Johnson v. State, 925 So.2d 86, 103 (¶ 32) (Miss.2006) (acknowledging authority of circuit and county courts to suspend convicted felon’s sentence).

¶6¶ 20. The Fullercourt found that our state constitution authorizes the circuit court’s inherent authority and jurisdiction. *953Id.Indeed, Article 6, Section 156 of the Mississippi Constitution establishes original jurisdiction in the circuit courts over all matters criminal and civil matters in this state not vested by the constitution in some other court. Mississippi Code Annotated section 47-7-29 (Rev.2011) establishes the authority to prosecute a prisoner for felonies committed while on ERS, and in so doing, this statute acknowledges the circuit court’s jurisdiction to impose sentences on offenders for felonies committed while on ERS.5 Since statutes in pari materia are to be construed together, then logically the circuit court also possesses authority to revoke a suspended sentence for the commission of a felony while on ERS. See generally Miss. Dep’t. of Transp. v. Allred, 928 So.2d 152, 155 (¶ 16) (Miss.2006).

¶7¶ 21. The majority cites to Mississippi Code Annotated section 47-5-138(6) (Supp. 2013) for the asserted proposition that Davis remains under the MDOC’s “sole” jurisdiction when released from incarceration and placed in the MDOC’s ERS program. As stated, I certainly agree that section 47-5-138(6) gives the MDOC the authority to promulgate ERS rules and regulations, as well as the jurisdiction to operate the ERS program for offenders sentenced to MDOC custody. I also certainly agree that this statute gives the MDOC authority and jurisdiction to determine if an inmate violated the rules of the MDOC’s ERS program, and the authority and jurisdiction to determine whether an inmate may be released early for his successful completion of the requirements of the MDOC’s ERS program.6 However, this statute fails to divest the sentencing circuit court of its original jurisdiction and inherent constitutional authority to revoke a previously suspended sentence, or post-release supervision, due to a breach of conditions of the suspension, such as commission of criminal felonious misconduct.7

¶8¶ 22. With respect to divestiture of jurisdiction, our supreme court’s precedent holds that existing jurisdiction is not to be *954inferred as having been withdrawn where the constitutional or legislative pronouncement of the withdrawal of jurisdiction is not clear and unambiguous. See Fuller, 57 So. at 8. We should therefore not infer that jurisdiction has been withdrawn in this case, or abdicate judicial powers and duties, since no constitutional or legislative pronouncement of such withdrawal exists to divest the circuit court of its original jurisdiction, at the relevant times applicable to this case. Id. (“The Legislature cannot authorize courts to abdicate their own powers and duties’^.] ).8

¶9¶ 23. The court in Arant v. Hubbard, 824 So.2d 611, 614 (¶ 12) (Miss.2002) (citation omitted), explained that the “the language of an act designed to divest a court of its jurisdiction must express the intent with such clearness as to leave no room for doubt.” The Arantcourt then found that the statute at issue in that case failed to clearly and unambiguously provide that jurisdiction was to be divested from the circuit court. Therefore the Arantcourt calculated that the act at issue established concurrent, not exclusive, jurisdiction by also vesting the justice court with that jurisdiction. Id. at 615 (¶¶ 13-14). The Texas Criminal Court of Appeals cited Fullerin its discussion of Snodgrass v. State, 67 Tex.Crim. 615, 150 S.W. 162, 166, 178 (1912), explaining that judicial construction cannot affect the supreme law embodied in our constitution and “constitutional restraints are overstepped where one department of government attempts to exercise powers exclusively delegated to another.”

¶10¶ 24. I therefore respectfully submit that the majority opinion is overly broad and unnecessary in finding that a sentencing circuit court lacks jurisdiction in a criminal case to revoke a previously suspended sentence, or post-release supervision, for an “incident” on ERS.9 Since the jurisdiction issue involves consideration of whether the incident committed constituted a mere violation of the MDOC’s technical rules, or whether the misconduct constituted a felony violating the previously imposed conditions of the suspension. Again, the MDOC certainly possesses statutory authority to determine whether a violation of the ERS program’s rules and regulations occurred, but the MDOC’s authority over its programs fails to divest the circuit court of its jurisdiction.10 Section 156 of the Mississippi Constitution establishes original jurisdiction in criminal matters with the circuit court, and nothing in section 47-5-138 divests the circuit court of its jurisdiction. Accordingly, I concur in part and in result with the decision of the majority.

¶11JAMES, J., JOINS THIS OPINION IN PART.