                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2003-CT-00909-SCT

JOE EARL SWEAT

v.

STATE OF MISSISSIPPI

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           04/14/2003
TRIAL JUDGE                                 HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED:                  ITAWAMBA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    PRO SE
ATTORNEYS FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                            BY: W. GLENN WATTS
DISTRICT ATTORNEY:                          JOHN R. YOUNG
NATURE OF THE CASE:                         CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                THE JUDGMENT OF THE COURT OF APPEALS
                                            IS AFFIRMED IN PART AND REVERSED IN
                                            PART, AND THE JUDGMENT OF THE
                                            ITAWAMBA COUNTY CIRCUIT COURT IS
                                            AFFIRMED IN PART AND REVERSED AND
                                            RENDERED IN PART- 10/06/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1.    On certiorari, we review the Court of Appeals’ judgment that affirmed in part the    trial

court’s dismissal of the post-conviction relief motion filed by Joe Earl Sweat, but reversed and

remanded for resentencing due to the trial court’s improper suspension of a portion of Sweat’s

twenty-year sentence. Sweat v. State, 2004 WL 2712103 (Miss. Ct. App. 2004). We agree

that the sentencing order was incorrect under this Court’s recent decisions and the statutory
scheme for resentencing prior convicted felons, but we do not agree that it is necessary to

remand for resentencing.     We hold that in accord with the provisions of Miss. Code. Ann. §

47-7-34 (Rev. 2004) and our plurality opinion in Miller v. State, 875 So.2d 194, 200 (Miss.

2004), Sweat’s sentence is hereby modified to provide that he is sentenced to a term of twenty

years, with eight years of incarceration and twelve years to be served under post-release

supervision with five years of that post-release supervision to be by the Mississippi

Department of Corrections (MDOC).

                                                FACTS

¶2.       On June 10, 2002, Joe Earl Sweat, a prior-convicted felon, pled guilty in the Itawamba

County Circuit Court to conspiracy to manufacture methamphetamine. His plea was accepted,

and he was sentenced to twenty years in the custody of MDOC, with twelve years suspended

and five years of post-release supervision.       Sweat later filed a motion seeking post-conviction

relief.   The trial court summarily dismissed that motion .On November 30, 2004, the Court of

Appeals affirmed the dismissal in part. However, by a 5-4 vote, it held “that the trial court erred

when it suspended a portion of Sweat’s twenty year sentence.” Sweat, 2004 WL 2712103 ,*3.

  It further held that only the trial court has authority to modify the sentence, because

“sentencing is the exclusive prerogative of the trial courts” and concluded it must vacate the

sentence and remand to the trial court for entrance of a proper sentencing order. Id.

                                              ANALYSIS

¶3.       The relevant portion of Sweat’s sentencing order reads as follows:

          IT IS, therefore ordered and Adjudged by the Court that the Defendant be and
          he/she is hereby sentenced to serve a term of twenty years in custody of the
          Mississippi Department of Corrections at a facility to be designated by said
          department, that twelve years of said sentence shall be and the same is hereby


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        suspended and that the defendant shall be placed under post-release supervision
        upon the release from the term of incarceration for a period of five years
        pursuant to Mississippi Code section 47-7-34 and said sentence is based upon
        the following conditions. . . .

The Court of Appeals read §§ 47-7-33 and -34 to conclude that the circuit court did not have

the authority to suspend the imposition of Sweat’s sentence, because he had been previously

convicted of a felony.      Thus, the Court of Appeals remanded so that his sentence could be

modified. This reading is not in line with recent decisions by this Court.

¶4.     The two statutes serve completely different purposes.                Miller, 875 So.2d at 199.

Section 47-7-33 allows for supervised probation, while section 47-7-34 allows for post-

release supervision.    Between these statutes there are two major differences: (1) a convicted

felon may not be given supervised probation but may be given post-release supervision; and,

(2) there is no time limit for post-release supervision while there is a five-year limit for

supervised probation. Id. It is not disputed that, at the time of sentencing, Sweat was a prior

convicted felon. Therefore, § 47-7-33 is inapplicable, and § 47-7-34 must apply.

¶5.         We have held that, while § 47-7-34 limits the term of post-release supervision to five

years, convicted defendants may be sentenced to a longer term.               However, they may only be

required to report to MDOC officials for the statutory maximum period.                Miller, 875 So.2d

at 199-200 (trial judge may sentence a prior convicted felon to more than five years provided

that the period of incarceration and post-release supervision do not exceed the maximum

period of time allowed for the offense).         The time period that extends beyond the five-year

statutory     maximum     for   post-release    supervision    becomes       “unsupervised”   post-release

supervision. Boddie v. State, 875 So.2d 180, 182 n.1 (Miss. 2004).




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¶6.      The present case is factually similar to Miller.                In Miller, the defendant was

incarcerated for one year and then released for ten years of supervised probation. Miller, 875

So.2d at 196. In that case we held that Miller’s sentence should be modified so that he serves

the statutory maximum of five years of “supervised” post-release supervision and five years

of “unsupervised” post-release supervision.     Id.       at 200.   Here, it is clear that the trial court

sentenced Sweat under § 47-7-34.         Therefore, we modify the trial court’s sentence so that

following his eight years of incarceration, Sweat will be released to twelve years of post-

release supervision but that he is required to report to MDOC officials for only five years and

the remaining seven years will be “unsupervised” post-release supervision.

   ¶7.      The Court of Appeals held that any error, even one such as the present one, must be

remanded to the trial court for resentencing.     We now hold that it does not, and that we may

resentence a convicted defendant without remanding to the trial court in cases where the error

is caused by a misapplication of a sentencing statute. The Court of Appeals cites Wallace v.

State, 607 So.2d 1184, 1188 (Miss. 1992), for the principle that sentencing of a criminal

defendant is the sole prerogative of the trial court.          However, Wallace and its progeny are

distinguishable from the present case.     In Wallace, the appellant, a criminal defendant, sought

to have his sentence reversed because it violated his Eighth            Amendment      right against cruel

and unusual punishment Id. at 1188.

¶8.      This case does not present the same question but is in line with United States v.

Hernandez-Guevara, 162 F.3d 863 (5th Cir. 1998).                The Fifth Circuit admitted that in most

cases it is required to remand to the trial court for resentencing, but not when it is a waste of

judicial resources because it would be a rote resentencing. Id. at 878. We have implicitly held


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as such several times before, but now explicitly do so. We hold that this Court must remand

when the trial court commits reversible error but not when all that is required is modification

of a sentence based on statutory provisions.

¶9.     We have held that generally, where a convicted defendant receives an illegal sentence,

the sentence must be vacated and the case remanded to the trial court for resentencing because

the defendant suffered prejudice.      See Robinson v. State, 836 So.2d 747 (Miss. 2002). The

Court of Appeals has recently held that there is no prejudice suffered when a defendant

receives an illegally lenient sentence. Edwards v. State, 839 So. 2d 578, 580-81 (Miss. Ct.

App. 2003).     Further, when the error benefits the defendant in the form of a more lenient

sentence, it is harmless error. Chancellor v. State, 809 So.2d 700, 702 (Miss. Ct. App. 2001).

The law which relieves defendants from the burden of an illegal sentence applies to situations

where the defendant is forced to suffer a greater sentence rather than the luxury of a lesser

sentence. Id.    We agree with the Court of Appeals and therefore adopt its approach.      Our

holding today will not force Sweat to suffer incarceration for a period of time longer than he

was legally obligated. It merely requires a modification of the terms of the sentence. The total

sentence is within the statutory maximum for the crime for which he was convicted.          The

unsupervised-seven-year period does not cause Sweat to suffer a burden but rather is a luxury

compared to the fact that he could have remained incarcerated during that time. Therefore, he

has suffered no prejudice from the sentence of the trial court, and thus it does not require us

to remand the case for resentencing.

                                           CONCLUSION




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¶10.    For these reasons, we affirm in part and reverse in part the judgment of the Court of

Appeals, and we affirm in part and reverse in part the trial court’s judgment.       We render

judgment here that Sweat will remain incarcerated for eight years as ordered by the trial judge;

at that time he will be released under § 47-7-34 for post-release supervision by MDOC for five

years; and will then remain under post-release supervision for seven years but is not obligated

to report to MDOC officials.

¶11. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART, AND THE JUDGMENT OF THE ITAWAMBA COUNTY
CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN
PART.


    SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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