Opinion
November 8, 1948.
1. Criminal procedure — suspension of sentence.
It is not within the power of a county court to suspend sentence, or a part thereof, on conviction, and the court has no authority to accept a plea of guilty on condition that the sentence or portion thereof shall be suspended. Section 2659, Code 1942.
2. Criminal procedure — suspension of sentence — rearrest of convict.
When, upon a plea of guilty, the county court imposed a sentence of fine and imprisonment but suspended the imprisonment during good behavior, the suspension of the imprisonment was unauthorized, and the convict could be arrested and compelled to serve the suspended sentence without any order of the court and regardless of the convict's subsequent want of good behavior.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, J.
Homer Pittman, for appellant.
We are familiar with the cases holding that a suspension of sentence by the county court is void, and could have been treated as a nullity, and the defendant is subject to be re-arrested at any time on order of the court, and required to serve that portion of the unlawful sentence. We believe, however, there should be exceptions to such holdings. I am sure this Honorable Court will agree with me that it is a general practice among prosecuting attorneys over the State to offer inducements to persons charged with crime to plead guilty, by recommending suspensions of a portion of their sentence, and if a county judge does not have a lawful right to suspend sentences, then if a conditional plea is accepted by the county judge when the law does not authorize such a plea, indeed the person, and the appellant in this case, was misled by the court, and the court had no right to accept such a plea and then later inflict punishment upon the appellant for violation of the condition of said plea. A person charged with crime should not be misled by any promises or inducements by the State's attorney, or by the courts of this State, and it is a dangerous precedent to permit a defendant to enter a conditional plea of guilty when the court has no authority to accept such a plea. The court can readily understand how easy it would be for a person to be misled in pleading guilty to crime on the promise that a portion of the sentence would be suspended, and in this case, the defendant entered a conditional plea of guilty under the impression that the court had a lawful right to suspend the jail term.
In the case of Wolfe v. State, 102 Arkansas, 295, the court said, "The lower court cannot allow a plea of guilty on condition that it will impose a fine only if the accused subsequently commits a similar offense, entered pursuant to an agreement with the prosecuting attorney, and the court has no authority to render judgment on the plea on finding that the condition has been broken. It must permit the accused to withdraw the plea and enter a plea of not guilty."
We submit therefore, that the circuit court should have considered the appellant's appeal from the unlawful order revoking the suspension of sentence, and that the cause should have been reversed and remanded to the circuit court docket, and the appellant permitted to enter a plea of not guilty and given his day in court.
R.O. Arrington, Assistant Attorney General, for appellee.
The appellant's argument appears to be that the county court erred in accepting a conditional plea of guilty and that since the county judge had no authority to suspend the sentence, therefore, he had no authority to revoke it; and that because of these two facts, the circuit court erred in not reversing the cause and permitting the appellant to enter a plea of not guilty and for another trial.
The affidavit charges the appellant with the unlawful possession of whiskey. To this affidavit the appellant, attended by his counsel, plead guilty thereto and was sentenced to pay a fine of One Hundred Dollars ($100.00) and serve a period of ninety (90) days on the County road, the ninety (90) days being suspended on good behavior, the arraignment and sentence appearing in the record.
Under the law, the other proceedings in this record will not be referred to as in my opinion they are a nullity and have no bearing on the disposition of this appeal. The appellant was charged with the unlawful possession of whiskey, Chapter 3, Section 2613, Laws of 1942. For violation of this section, the penalty is as follows: "(a) By a fine of not less than one hundred dollars, nor more than five hundred dollars, or by imprisonment in the county jail not less than one week nor more than three months, or both, for the first conviction under this section." Therefore the sentence of the court, One Hundred Dollars ($100.00), and ninety (90) days on the county road was a lawful sentence. See Section 2659, Code 1942, and Fuller v. State, 100 Miss. 811, 57 So. 806; Cameron v. Thompson, Sheriff, 178 Miss. 434, 173 So. 422.
Upon the record herein, I submit that the appellant was lawfully charged with the unlawful possession of whiskey; that he was attended by counsel and entered a plea of guilty thereto; that he was lawfully sentenced to pay a fine of One Hundred Dollars ($100.00) and serve ninety (90) days on the county road; that the suspension of the sentence was void and that the appeal should be dismissed.
When this litigation was initiated, appellant was at large under the following judgment of the County Court of Forrest County:
"Comes the County Prosecuting Attorney who prosecutes for the State and the Defendant in his own proper person and by his counsel and upon being arraigned at the bar of the court on said charge for plea thereto plead guilty and now being placed before the bar of the court and asked if they had anything to say why the sentence of the court should not be pronounced against him had naught to say. It is therefore considered by the court and so ordered that Jimmie Steadman be fined the sum of One Hundred Dollars and all costs of court and to serve for a period of ninety days on the County Road, the ninety days being suspended on good behavior. Mrs. Ernestine Scott Steadman ordered to serve for a period of ninety days on the County Road, the days being suspended on good behavior."
Attention is called specifically to the fact that the judgment recites an unconditional plea of guilty, and a definite assessment of punishment in the form of a fine and imprisonment. This complete and valid judgment of the court is, however, followed by a suspension of the imprisonment on condition of the good behavior of the convict, appellant here.
The county attorney later, with a purpose to have the county court revoke the suspension of the sentence, conditioned upon good behavior, filed a petition therein, praying a citation against appellant requiring him to show cause why such revocation should not be had because of his alleged violation of the condition, in that he had, since its grant, been guilty of assault and battery and also of possession of an unregistered pistol. Appellant answered, denying the charges; testimony was had and the county court judge convicted appellant under such proceedings. An appeal was taken to the circuit court, and failing to obtain relief there, the case is now before us on appeal therefrom.
The assignments of errors are two: that the county court erred in accepting a conditional plea of guilty, and thereafter revoking an unlawful suspended sentence; and that the circuit court erred in dismissing "the appellant's appeal from the county court with a writ of procedendo, on the grounds that an appeal does not lie from judgment revoking a suspension of sentence, wherein in truth and in fact, the said suspended sentence was unlawful and prohibited under Section 2659 of the 1942 Code."
That section provides "it shall be unlawful for any justice of the peace or judge of county court, with or without condition, to suspend any sentence lawfully imposed under this chapter." It will be borne in mind that the judgment was a lawful one, lawfully imposing a valid sentence, on an unconditional plea of guilty, and that only the execution of that part thereof involving imprisonment was suspended during good behavior. It is, of course, argued here, in view of the assignment of errors, that this suspension of the execution of part of the sentence invalidates the whole judgment. It is also argued that the plea of guilty was conditional, which is refuted by the unqualified statement in the judgment that the defendant "plead guilty."
The point of appellant may be summarized briefly as a contention that the county court "had no right to accept a plea of guilty from the appellant on condition that a portion of the sentence should be suspended, for the reason that the county judge had no lawful right to suspend the sentence," and since the judgment, therefore, was void, appellant could not be rearrested and compelled to serve the suspended portion of the sentence.
There was no conditional plea of guilty, as shown supra, and the whole judgment was perfectly valid except that part suspending the ninety days on good behavior, which contravened the prohibition of the statute, and was void. There is no statutory or other authority for the proceeding followed here by the county prosecuting attorney in the county courts, by which appellant was haled before the county court judge and found guilty of two subsequent misdemeanors, for which the penalty imposed by the court was that he be required to serve the suspended sentence as a consequence thereof. We, therefore, disregard that feature of the record before us, and confine our conclusion to the statute quoted, and decisions based thereon.
(Hn 1) In the case of Fuller v. State, 100 Miss. 811, 57 So. 806, 808, 39 L.R.A., N.S., 242 Ann. Cas. 1914A, 98, this Court held: "That portion of the judgment which directed `that the jail sentence be suspended during the good behavior of the defendant' was void, and the defendant could have been taken into custody immediately upon the rendition of the judgment." In other words, then and there, upon pronouncement of the sentence and the suspension of the execution of part thereof by the county court, in excess of its powers, the sheriff could have lawfully rearrested the prisoner for service of the suspended portion, without more court proceedings. The Court in that case further said: "While at large under this void order, to which he did not object, appellant was in the same situation that he would have been, had he simply escaped from custody," citing Ex parte Bell, 56 Miss. 282, and other authorities.
In the case of Cameron v. Thompson, 178 Miss. 434, 173 So. 422, 423, we held that the suspension by a county court of a portion of fine and sentence for selling intoxicating liquors was void, the release of the defendant from custody of the sheriff wrongful, and that defendant was thereafter still subject to arrest and confinement for the unsatisfied portion of the fine and imprisonment. It was said by the Court in that case: "the sheriff, without an order of the court to do so, could have taken the appellant in custody on the suspended portion of her sentence."
So here, it was immaterial whether appellant had committed subsequent violations of the law. (Hn 2) The suspension was void, and he could have been arrested immediately, or later, by the sheriff without any order of the court and compelled to serve the suspended sentence.
The right result was reached here, however, by the order of the court requiring that "the said defendant Jimmie Steadman be required to serve said ninety (90) days on the county road of said county." By this, we are not to be taken as holding that such an order was necessary, or to recede from our holdings in the Fuller and Cameron cases, supra.
The judgment of the lower court will be affirmed.
Affirmed.