In May 1989, after testing positive for illegal drugs, Leech's probation was modified to require that he "serve as a condition of his probation 90 days in the Lowndes County Jail." Leech v. State, 994 So.2d 850, 851 (Miss. App. 2008) reh'g denied Nov. 18, 2008, cert denied Jan. 22, 2009 (Cause No. 2007-CP-00566-COA). After serving the ninety days, Leech fled the state of Mississippi and moved to Allentown, Pennsylvania. Id. On May 30, 1990, the state filed a petition to revoke on the basis of failure to report to probation officer, failure to pay supervision fees and court costs, and testing positive for the use of illegal drugs.
Peterson's five-year probationary period began to run on September 5, 2006. See Leech v. State , 994 So. 2d 850, 853 (¶13) (Miss. Ct. App. 2008). Therefore, his probationary period expired on September 5, 2011.
¶ 6. “Probation may be lawfully revoked beyond the probationary period if a revocation petition is filed prior to the end of the probationary period—an act deemed to ‘toll’ the running of the probationary period—and the State acts on the petition within a reasonable time.” Leech v. State, 994 So.2d 850, 853 (¶ 14) (Miss.Ct.App.2008). “If this were not the law, then a probationer who violates his probation on the last day of the five [5] year period would have to be caught and given a hearing that day or his probation could not be revoked.
¶11. In Leech v. State , 994 So. 2d 850, 853 (¶11) (Miss. Ct. App. 2008), "Leech argue[d] that the trial court lacked authority to revoke his probation and reinstate his suspended sentence because his five-year probationary period had expired at the time his probation was revoked." Although not dispositive of Leech's case, this Court stated that "Leech's five-year probationary period began to run on May 12, 1988, when he was released on supervised probation following suspension of the original sentence."
"Probation may be lawfully revoked beyond the probationary period if a revocation petition is filed prior to the end of the probationary period—an act deemed to ‘toll’ the running of the probationary period—and the State acts on the petition within a reasonable time." Leech v. State , 994 So.2d 850, 853 (¶ 14) (Miss. Ct. App. 2008). "If this were not the law, then a probationer who violates his probation on the last day of the five (5) year period would have to be caught and given a hearing that day or his probation could not be revoked.
Indeed, it could not be more clear: it excepts claims of unlawful parole revocation from its three-year limitations period.” Magee v. State, 152 So.3d 1193, 1197 (¶ 10) (Miss.Ct.App.2014) (citing Edmond v. Miss. Dep't of Corr., 783 So.2d 675, 678 (¶ 12) (Miss.2001)); see also Leech v. State, 994 So.2d 850, 853 (¶ 9) (Miss.Ct.App.2008) (PCR motion alleging unlawful revocation of probation is not subject to the time-bar of section 99–39–5(2)). Accordingly, we turn to address Evans's assignments of error.
2001) (emphasis added). Additionally, this Court has consistently held that “[a] post-conviction claim alleging unlawful revocation of probation is not subject to the time[-]bar of section 99–39–5(2).” Leech v. State, 994 So.2d 850, 853 (¶ 9) (Miss.Ct.App.2008) (citing Daggans v. State, 741 So.2d 1033, 1037 (¶ 12) (Miss.Ct.App.1999)). Accordingly, we find that Magee's PCR motion is excepted from the procedural time-bar.
Additionally, this Court has consistently held that "[a] post-conviction claim alleging unlawful revocation of probation is not subject to the time[-]bar of section 99-39-5(2)." Leech v. State, 994 So. 2d 850, 853 (¶9) (Miss. Ct. App. 2008) (citing Daggans v. State, 741 So. 2d 1033, 1037 (¶12) (Miss. Ct. App. 1999)). Accordingly, we find that Magee's PCR motion is excepted from the procedural time-bar.
Further, "a motion for post-conviction relief is not the proper means by which to seek credit for time served." Leech v. State, 994 So.2d 850, 856 (¶ 28) (Miss.Ct.App. 2008) (citing Murphy v. State, 800 So.2d 525, 527-28 (¶ 10) (Miss.Ct.App. 2001)). Phillips must first seek relief from the administrative system of the MDOC before proceeding in the courts.
"[D]ouble jeopardy is violated `only if the court attempts to administer a longer sentence than what was originally conferred upon the defendant.'" Leech v. State, 994 So.2d 850, 856 (¶ 26) (Miss.Ct.App. 2008). Therefore, we affirm Whitaker's conviction, reverse the sentence, and remand the case to the trial court to correct the sentencing order consistent with this opinion.