Opinion
No. 2001-CP-00364-COA.
December 18, 2001.
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. GRAY EVANS, DATE OF TRIAL COURT JUDGMENT: 02/06/2001
DISPOSITION: AFFIRMED
ATTORNEY FOR APPELLANT: HENRY EARL COLEMAN, PRO S.E.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: WAYNE SNUGGS
DISTRICT ATTORNEY: FRANK CARROLTON
BEFORE McMILLIN, C.J., THOMAS, AND MYERS, JJ.
¶ 1. Henry Earl Coleman appeals the decision of the Sunflower County Circuit Court, Honorable Gray Evans presiding, dismissing his petition for post-conviction relief. Finding no error, we affirm.
FACTS
¶ 2. Coleman was convicted of aggravated assault in 1993 and was sentenced to serve twenty years. At some point he was released on probation or parole. This release was revoked when the police raided Coleman's home and found that he was in possession of three firearms. Judge Evans sentenced Coleman to an additional term of three years to be served consecutively with his first sentence.
DISCUSSION
¶ 3. When Judge Evans reviewed Coleman's petition for post-conviction relief, he found that Mississippi Department of Correction's computation of time was correct. MDOC's calculation that Coleman would have to serve thirteen years before he was eligible for any type of parole was based on the sentence of twenty years and the sentence of three years to be served consecutively.
¶ 4. His original sentence for aggravated assault occurred in 1993 under the "50%" law. Miss. Code Ann. § 47-5-138 (Supp. 2001). This means that he was to serve at least ten years of his original twenty year sentence. When his probation was revoked the court reinstated his original sentence and added three years for the firearms violation. The recalculated sentence equals thirteen years. Probation is not part of the original prison sentence. Carter v. State, 754 So.2d 1207, 1209 (¶ 5) (Miss. 2000). "When a defendant is found to have violated . . . his probation, the court has the power to impose any sentence which would have been originally imposed." Johnson v. State, 753 So.2d 449 (¶ 15) (Miss.Ct.App. 1999).
No longer applicable to sentences imposed after June 30, 1995.
¶ 5. Judge Evans did exactly what our statutes and case law allow. He dismissed a meritless claim because the MDOC correctly calculated the eligibility date of Coleman's possible parole. Finding no error, we affirm.
¶ 6. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DENYING POST-CONVICTION RELIEF WITH PREJUDICE IS AFFIRMED. ALL COSTS ARE ASSESSED TO SUNFLOWER COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P. JJ., BRIDGES, THOMAS, LEE, CHANDLER AND BRANTLEY, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.