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IN THE SUPREME COURT OF MISSISSIPPI NO. 96-CA-00085-SCT CONSOLIDATED WITH 90-KA-01252-SCT JOSEPH WALTON v. STATE OF MISSISSIPPI THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: 12/29/95 HON. HENRY LAFAYETTE LACKEY MARSHALL COUNTY CIRCUIT COURT JOHN BOOTH FARESE OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. LAWRENCE L. LITTLE CIVIL - POST CONVICTION RELIEF REVERSED - 11/06/97 11/21/97 3/18/98

DISTRICT ATTORNEY: NATURE OF THE CASE: DISPOSITION: MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. McRAE, JUSTICE, FOR THE COURT:

The original opinion in this case is withdrawn and this opinion is substituted therefor. We are asked to determine whether the circuit court below erred in revoking the suspended sentence of Joseph Walton after he was found guilty of selling a controlled substance. Because Walton had been released unconditionally from the state penitentiary, we find that the circuit court could not revoke Walton's suspended sentence based on violation of terms and conditions. Accordingly, we reverse the circuit court's decision. I.

On August 29, 1983, Joseph Walton pleaded guilty to armed robbery and was sentenced to fifteen years in the state penitentiary at Parchman, with ten years suspended. Walton served just under five years and was released on November 24, 1987. On March 28, 1988, Walton was indicted by a Marshall County Grand Jury for selling a controlled substance. After a two-day trial, Walton was convicted of the crime on November 16, 1989. On April 25, 1990, the State filed a petition to revoke Walton's suspended sentence, asking that Walton be ordered by the Court to serve the remainder of his suspended sentence under the charge of armed robbery, for which he served nearly five years in Parchman. After a hearing on November 5, 1990, the lower court sustained the State's motion, reinstating Walton's sentence to imprisonment for the "suspended" ten years of sentence imposed when Walton pleaded guilty to armed robbery. This Court dismissed Cause No. 90-KA-01252, Walton's appeal of the revocation of his suspended sentence, without prejudice on November 30, 1995, finding that no authority existed for an appeal of a revocation order directly to the Court. Pursuant to the revocation of suspended sentence, Walton correctly filed a petition for post-conviction relief in the lower court; he also filed a motion to vacate and set aside judgment. After denial of his petition for post-conviction relief and motion to vacate and set aside judgment by the lower court, Walton moved this Court to incorporate the entire record of 90-KA-01252 into this appeal, No. 96-KA-00085. The Court granted the motion on March, 27, 1996. Walton's sole issue on appeal is whether the circuit court below erred in denying his motion to vacate and set aside judgment revoking his suspended sentence.(1) II. Walton alleges that because his suspended sentence was imposed after the five years allowed by statute, because the suspended sentence lacked the finality of stated conditions upon which it could be revoked, and because it expanded the judge's authority beyond the parameters of the Pardon and Parole Act, his suspended sentence was void ab initio. The State responds that the sentence was properly revoked because Walton committed a crime almost immediately upon his release from prison. In the alternative, the State argues that even if Walton's sentence was void ab initio, only the invalid portion of his sentence should be removed. Mississippi recognizes the power of the court to suspend part of a convicted felon's sentence. Circuit courts have the power, after conviction or guilty plea, to suspend the imposition or execution of sentence, and place the defendant on probation; further, in placing any defendant on probation, the court, or judge, shall direct that the defendant be under the supervision of the department of corrections. Miss. Code Ann.

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