Opinion
No. 32201.
May 18, 1936.
1. CRIMINAL LAW.
Appeals to Supreme Court are not matters of right under common law, but are allowable only in cases and in manner provided by statute (Code 1930, sections 16, 1300).
2. CRIMINAL LAW.
Order revoking suspension of sentence of accused who had pleaded guilty of unlawful possession of intoxicating liquors held not appealable (Code 1930, sections 16, 1300).
3. CRIMINAL LAW.
Where hearing with respect to revocation of suspended sentence is public and on reasonable notice and evidence is sufficient to convince reasonable person that conditions of suspension have been broken, convict has no recourse when judge revokes suspension except to serve sentence and pay fine in so far as theretofore suspended, and in any event convict has no recourse by appeal (Code 1930, sections 16, 1300).
APPEAL from circuit court of Forrest county. HON.W.J. PACK, Judge.
Hearst, Pittman Pittman, of Hattiesburg, for appellant.
The evidence offered in behalf of the state and against the appellant is wholly insufficient to justify the revoking of the appellants' suspension of sentence.
We have examined most of the Mississippi reports and have not found any case which might enlighten the court on this subject; unless it is the McLemore case, 155 So. 415. In that case Judge ANDERSON says that "It is only necessary that the court be convinced that the condition of the suspension has been violated."
In this opinion however in this particular case Judge ANDERSON says "the evidence was ample to show that the appellant was guilty not only of the unlawful possession of intoxicating liquor, but also was engaged in the unlawful manufacture of it."
We are not contending that the state would have to show that the appellant violated the condition of the suspension beyond a reasonable doubt, but we do contend that it was incumbent on the state to show that the appellant had violated the law in some respect before the court would be warranted in revoking his suspension of sentence.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
Appeals from the circuit court to the Supreme Court lie under section 13, Code of 1930, from final judgments only; consequently, the appeal here will not lie unless the order appealed from is a final judgment within the meaning of this statute.
McLemore v. State, 155 So. 415.
And, in determining whether an order revoking a suspended sentence is an appealable final judgment, the provisions of section 1300, Code of 1930, are clearly helpful.
It will be observed that the statute not only provides for no appeal, but apparently by necessary implication negatives that right by providing: "And shall be subject, after such action by the court . . . to arrest and return to proper authorities as in the case with ordinary escaped prisoner."
Since the statute provides that a trial judge may revoke the suspension in the vacation of the court, it seems that such an act is in the same class as the act of a judge or chancellor in granting or refusing a remedial writ under section 742, Code of 1930, from which no appeal lies.
Alexander v. Woods, 130 Miss. 869, 60 So. 1017; Wynne v. Illinois Central R.R. Co., 108 Miss. 376, 66 So. 410.
Assuming that he is entitled to a review here, it is virtually necessary for the record to show that the court acted arbitrarily and in defiance of the weight of the evidence, before his decision would be interfered with by this court. The statute only requires that the trial judge or court, as the case may be, be "convinced by proper showing."
Section 1300, Code of 1930.
The facts of this case are quite as "convincing," if not more so, as the facts reflected in the Bolton case, 166 Miss. 290, 146 So. 453.
On July 10, 1935, appellant entered a plea of guilty to an indictment for the unlawful possession of intoxicating liquors, and the court sentenced him to pay a fine of five hundred dollars and to serve ninety days in jail; but all of the said sentence except one hundred fifty dollars and thirty days was suspended during the good behavior of the defendant. On December 3, 1935, the district attorney filed a petition to have the defendant cited to show cause why the suspension should not be revoked, upon which petition the circuit judge ordered citation to issue, requiring the defendant to appear before the court on January 3, 1936. On that day a public hearing was had, and upon the evidence adduced, the court revoked the former suspension of sentence, and required the defendant to pay the remainder of the fine and to serve the remainder of the days of imprisonment. From the order of the court revoking the suspension, the defendant has appealed, assigning as his ground of complaint that the evidence was not sufficient to show that he had been guilty of misbehavior.
The state has raised the question that no appealable case is here presented, and, as foreshadowed in McLemore v. State, 170 Miss. 641, 155 So. 415, we are of the opinion that the point is well taken and must be sustained. It has been settled from an early day in this state that appeals to the supreme court are not matters of right under the common law, but are allowable only in the cases and in the manner provided by statute. Section 16, Code 1930, is the statute which allows appeals to the Supreme Court by defendants in criminal cases, and that section reads as follows: "Any person convicted of an offense in a circuit court may appeal to the Supreme Court, provided, however, an appeal from the circuit court to the Supreme Court shall not be allowed in any case where the defendant enters a plea of guilty."
This is not an appeal from the conviction; for the conviction had already become an accomplished and final fact on July 10, 1935, and, moreover, no appeal from the conviction was allowable because, as already stated, there was a plea of guilty. The appeal attempted to be taken here is from an order of the circuit judge entered under section 1300, Code 1930, which authorizes the judge to revoke the suspension of a sentence; and neither the section last cited nor the two preceding related sections make any mention of an appeal in respect to things done thereunder.
The fine of five hundred dollars and the sentence of ninety days in jail imposed by the circuit judge at the time of the conviction were within the limits provided by law; wherefore the amount of the fine and the number of days in jail were matters committed to the sole judgment of the trial judge. What the trial judge did in this respect within the statutory limitations was not reviewable here, was not assignable as error on appeal, and hence was not an appealable matter, solely considered. The trial judge had the power and authority, not subject to any review here, to require the convict to pay the entire fine of five hundred dollars and to serve the entire ninety days in jail at once upon his plea of guilty. And since the trial judge could order the whole of the fine and sentence to be executed at once, the convict can have no appealable grievance that the judge required one hundred fifty dollars to be paid and thirty days of the sentence served at once, and later required the remainder of the fine to be paid and the remainder of the jail sentence to be served. It was a matter of grace and solely within the discretion of the trial judge to suspend part of the fine and jail sentence, and when that has been done, all that the statute requires in respect to the order of revocation of the suspension is that the trial judge shall be convinced by a proper showing that the condition of the suspension has been broken by the convict, and, as heretofore stated, the statute, section 1300, Code 1930, makes no mention of an appeal.
The sections of the statute, sections 1298-1300, Code 1930, authorizing suspended sentences in whole or in part in misdemeanor cases and the subsequent revocation of the suspension have been used by the circuit judges of the state to accomplish good results in probation and reformation. Some judges require that all those under suspended sentence shall appear on the opening day of each criminal term in the county, and after the grand jury has been charged, but before retiring to their room, the sheriff is required to call the names of all those under suspended sentence from a list furnished by the clerk; and, as each name is called, the person called is required to come before the bar of the court and give an account of his conduct, and the court thereupon calls upon all officers and other persons present to rise and state whether they or any of them know of any misconduct on the part of the convicted person under such suspended sentence. And the entire list is thus called and dealt with, and if, as to any one of those called, any officer or other person present publicly suggests that a further or more definite investigation ought to be made, the party against whom the suggestion is made is thereupon notified to be present on a subsequent day when witnesses will be heard.
Other judges use other methods; but so long as the hearing with respect to revocation of suspended sentence is a public hearing upon reasonable notice, and is upon evidence sufficient to convince a reasonable person that the conditions of the suspension have been broken, the convict has no recourse when the judge revokes the suspension except to serve the sentence and pay the fine in so far as theretofore suspended; and in any event he has no recourse by way of appeal. If a circuit judge should undertake to revoke a suspension without giving the convict an opportunity to be publicly heard, or should act ex parte upon private representations made to him, or if having granted a public hearing no evidence of a substantial nature is offered against the convict, we do not hold that the convict would be without remedy, but we do say that an appeal is not the remedy.
Appeal dismissed.