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Johnson v. State12/11/2001
DATE OF TRIAL COURT JUDGMENT: 08/23/2000
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: PETITION FOR POST-CONVICTION COLLATERAL RELIEF DENIED
DISPOSITION: AFFIRMED - 12/11/2001
. Raymond Johnson was indicted for felony driving under the influence . Thereafter, Johnson entered a plea of guilty to the charge and was sentenced to a term of five years with four years suspended and one year to be served in the custody of the Mississippi Department of Corrections. Upon release from the Mississippi Department of Corrections, Johnson was placed under three years of post-release supervision by the Mississippi Department of Corrections. The supervision was based on several conditions, some of which Johnson confessed he breached. Therefore, Johnson was returned to the Mississippi Department of Corrections to serve the four year sentence which had previously been suspended. Johnson filed a petition for post-conviction collateral relief which was denied by the trial judge. Thereafter, Johnson filed a timely pro se appeal and presents the following issue: whether the sentence imposed by the trial judge exceeded the maximum allowed by law.
FACTS
. Johnson pled guilty to the felony of a third offense of driving under the influence . Johnson was sentenced as stated above for this crime. However, while Johnson was on probation, a petition for revocation of probation was filed, and Johnson confessed that he had breached some of the conditions of his probation. Therefore, the trial judge entered an order revoking the probation and sentenced Johnson to serve four years in the Mississippi Department of Corrections.
. Thereafter, Johnson filed a petition for post-conviction collateral relief which the trial judge denied without conducting an evidentiary hearing.
DISCUSSION
I. WHETHER THE SENTENCE IMPOSED BY THE TRIAL JUDGE EXCEEDED THE MAXIMUM ALLOWED BY LAW.
. Johnson argues that the trial court erred in sentencing him because he received an eight year sentence as opposed to a five year sentence -- a five year sentence being the maximum sentence allowable under Miss. Code Ann. § 63-11-30(1)(a)(2)(c) (Supp. 2000). Johnson cites the cases of Goss v. State, 721 So. 2d 144 (Miss. 1998), and Carter v. State, 754 So. 2d 1207 (Miss. 2000), to support his contention that the sentence imposed is in excess of the maximum allowed by law. Additionally, Johnson argues that pursuant to the language of Miss. Code Ann. §47-7-34 (Rev. 2000) he is entitled to have the fifteen months that he served on post-release supervision deducted from the four year suspended sentence that was reinstated by the trial judge.
. Mississippi Code Annotated § 63-11-30(2)(c) (Supp. 2000) addresses the sentencing for a third conviction of driving under the influence and provides for imprisonment of not less than one year nor more that five years.
. The State argues that the sentence which is currently being served by Johnson is within the statutory sentencing guidelines of Miss. Code Ann. § 63-11-30(2)(c) (Supp. 2000) and was authorized by Miss. Code Ann. § 47-7-34 (Rev. 2000). The State contends that the one year period that was served in the Mississippi Department of Corrections and the four year period that was suspended equaled five years which is allowed by § 63-11-30(2)(c). Accordingly, the three years of post-release supervision was not an additional period to be added to the aforementioned years, but simply was the time which Johnson would be under
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