                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1998-CP-01295-SCT
EARL WILSON, JR.
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                 08/13/1998
TRIAL JUDGE:                                      HON. GEORGE C. CARLSON, JR.
COURT FROM WHICH APPEALED:                        PANOLA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           PRO SE
ATTORNEY FOR APPELLEE:                            OFFICE OF THE ATTORNEY GENERAL
                                                  BY: BILLY L. GORE
DISTRICT ATTORNEY:                                ROBERT L. WILLIAMS
NATURE OF THE CASE:                               CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                      AFFIRMED - 3/31/1999
MOTION FOR REHEARING FILED:                       4/12/99
MANDATE ISSUED:                                   6/3/99




     BEFORE PITTMAN, P.J., BANKS AND MILLS, JJ.


     MILLS, JUSTICE, FOR THE COURT:


¶1. Appellant Earl Wilson, Jr., after being convicted of armed robbery in the Panola County Circuit Court,
was sentenced to "ten years in the Mississippi Department of Corrections with the last eight years
suspended, pending your future good behavior. . . ." On August 9, 1996, the eight years of suspended
sentence was revoked. Wilson filed a motion for post-conviction relief, and on August 13, 1998, the circuit
court denied and dismissed with prejudice Wilson's motion. From that order, Wilson appeals alleging the
following as error:

     I. WHETHER THE TRIAL COURT ERRED BY REIMPOSING THE EIGHT YEARS
     SUSPENDED SENTENCE.

     II. WHETHER THE TRIAL COURT ERRED IN DENYING HIS CLAIM OF
     INEFFECTIVE ASSISTANCE OF COUNSEL.

                                    STATEMENT OF THE FACTS

¶2. On April 3, 1991, Earl Wilson, Jr. pled guilty to grand larceny and armed robbery in the Panola County
Circuit Court. For the armed robbery charge, Cause No. CR-90-74-C(P2), he was ordered to serve "ten
years in the Mississippi Department of Corrections with the last eight years suspended, pending your future
good behavior. . . .". On the charge of grand larceny, Cause No CR-89-133-C(P2), Wilson was
sentenced to "a term of five years in the Department of Corrections with the last three years suspended,
pending your future good behavior. . . .".

¶3. Wilson was released from Parchman on March 19, 1993, after serving two concurrent years. On
March 26, 1996, the State of Mississippi petitioned the Circuit Court of Panola County to revoke Wilson's
armed robbery suspended sentence after he was charged with grand larceny and possession of a firearm by
a convicted felon. The Court revoked Wilson's suspended sentence following a hearing on August 9, 1996,
and reinstated Wilson's eight-year armed robbery sentence.

     I. WHETHER THE TRIAL COURT ERRED BY REIMPOSING THE EIGHT YEARS
     SUSPENDED SENTENCE.

¶4. The lower court labeled the eight years suspended sentence Wilson was given for the armed robbery
conviction "unsupervised probation." Wilson disagrees with this label, but argues that if his sentence is
deemed "unsupervised probation", the sentence violates Miss. Code Ann. § 47-7-37 which provides:

     The period of probation shall be fixed by the court, and may at any time be extended or terminated
     by the court, or judge in vacation. Such period with any extension thereof shall not exceed five (5)
     years . . . .

Miss. Code Ann. § 47-7-37 (1972 and Supp. 1998). Wilson believes this violation leaves the State without
authority to impose the eight-year sentence. Wilson's sentence was reimposed three years, four months, and
twenty-one days after he was discharged on March 19, 1993. The normal course of action when
suspending a sentence is to impose a sentence, determine what portion should be suspended then impose a
probationary period. Artis v. State, 643 So. 2d 533 (Miss. 1994). This is not what occurred with Wilson.
The record reveals that no probationary period was ever set for the eight-year suspended sentence on the
armed robbery plea. In fact, the court stated the sentence was imposed, "without the benefit of parole or
probation."

¶5. Wilson argues there was de facto "unsupervised probation". The difference between probation and
suspension of sentence has recently been clearly outlined by this Court. We have stated:

     Suspension is a term which generally applies to the actions of the State in relation to a prisoner under
     its supervision and control. If a court suspends a sentence imposed upon an accused, the State cannot
     enforce such sentence during the suspension period, absent violation by the defendant of the
     suspension terms. Simply stated, "suspension" is the restriction placed upon the power of the State to
     act during that period.

     However, in its order allowing suspension of a sentence, the court will generally prescribe terms and
     conditions which the prisoner must follow in order for the suspension period to continue. These
     conditions serve as the terms of "probation." Probation restricts the prisoner's rights rather than those
     of the State. If a prisoner is under court imposed probation, he or she may be placed in prison if the
     conditions of probation are not followed.

Goss v. State, 721 So. 2d 144, 145-46 (Miss. 1998). In Goss, we found the total sentence imposed
exceeded the maximum proscribed by statute. Goss must be limited to § 47-7-33 as it applies to previously
convicted felons. This section states that the court shall have power to suspend a criminal sentence except ".
. . where the defendant has been convicted of a felony on a previous occasion in any court or courts of the
United States and any state or territories thereof." § 47-7-33 Miss. Code Ann. (Rev. 1993). The lower
court in Goss erred in approving probation for a previously convicted felon in violation of the statute. The
Goss reasoning should not be expanded beyond its facts since other statutes exist which allow for
suspended sentences, lengthy probationary periods, and other sentencing options. See, e.g., § § 43-21-
625; 47-7-37 Miss. Code Ann.

¶6. Wilson's sentence falls far below the statutory maximum of life. We must only decide whether a
probationary period was established and whether it was within the statutory limit. His suspended sentence
was revoked within five years, the maximum probationary period. However, Wilson himself notes that his
discharge certificate lists no probationary period. Although a probationary period was not described, a
probationary period was in fact established based on the terms of Wilson's release. Such implied period is
binding up to the five-year limitation of Miss. Code Ann. § 47-7-37.

¶7. This Court in a similar case held, "[W]hile this is not a revocation of probation, it stands to reason that
the same due process analysis applies to revocation of suspended sentence proceedings." Artis v. State,
643 So. 2d 533, 536 (Miss. 1994)(citing Ross v. State, 594 S.W. 2d 852, 853( Ark. 1980)). We have
also found:

      The courts are empowered to revoke any or all of the defendant's probation or any part or all of the
      suspended sentence if, during the period of probation, it is found that the defendant violated the
      conditions of his probation/suspended sentence.

Artis, 643 So.2d at 537(citing Moore v. State, 585 So.2d 738 (Miss. 1991)).

¶8. The trial court in Artis did not discuss the terms and conditions of the suspended sentence with the
defendant. Artis, 643 So.2d at 537. Wilson, to the contrary, was clearly aware of the terms of his
sentence. When he entered his guilty pleas on April 3, 1991, the following exchange took place:

      THE COURT: . . . having accepted your plea of guilty to the armed robbery charge, it will be the
      sentence of the Court that you serve a term of ten years in the Mississippi Department of Corrections
      with the last eight years suspended, pending your future good behavior. . . . Do you understand that?

      DEFENDANT: Yes, sir.

      THE COURT: . . . . So you simply need to understand, Mr. Wilson, that whenever you get out from
      serving these sentences, then you'll still have basically eight years hanging over your head, understand
      that?

      DEFENDANT: Yes, sir.

      THE COURT: If you mess up in eight years from the time you get out of Parchman, if you mess up,
      commit another crime, don't pay this money within ninety days after you are released from Parchman,
      then you could end up having eight years to actually go back and serve, understand that, what is
      called a revocation or a taking away of your eight years suspended sentence and having to actually
      serve out the remainder of the sentence, do you understand that ?
     DEFENDANT: Yes, sir.

     THE COURT: Got any questions about it?

     DEFENDANT: No, sir.

¶9. In his brief, Wilson states, "The Due Process concerns focuses [sic] on the understanding the defendant
has of his guilty plea and suspended sentence, not what is understood by the judges and lawyers." It is
apparent that not only did the judge and lawyers understand, but Wilson clearly understood his sentence
could be revoked for bad behavior. Wilson also points to the following statute, and notes it does not
provide for parole:

     No person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery
     or attempted robbery through the display of a firearm until he shall have served ten (10) years if
     sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life
     of such person.

Miss. Code Ann. § 47-7-3(1)(d)(i)(Supp. 1998). This statute obviously does not apply to Wilson or aid his
defense since he was not sentenced to more than ten years and did not serve ten years. In addition, Wilson
muddles the distinction between parole and probation. Parole is based on good conduct in the penitentiary
while probation is set as a substitute for incarceration. See Miss. Code Ann. §§47-7-3(1), 47-7-37 (1972
and Supp. 1998).

     II. WHETHER THE TRIAL COURT ERRED IN DENYING HIS CLAIM OF
     INEFFECTIVE ASSISTANCE OF COUNSEL.

¶10. Wilson's claim of ineffective assistance of counsel arises from his belief that counsel should have
objected to the reimposition of his sentence. The hearing for reimposition was held August 9, 1996, and he
was not represented by counsel on that date. He also notes that his counsel sent an associate to appear at
his grand larceny plea hearing on June 28, 1996, and believes this was ineffective. However, he notes no
mistakes of associate counsel or prejudice to his case except the failure to object to reimposition of his
sentence. Since he was not represented by counsel when an objection to the reimposition could have been
made and since the reimposition was proper, this assignment of error is without merit.

                                              CONCLUSION

¶11. Finding no error in the lower court's denial of post-conviction relief, the order of the Panola County
Circuit Court is affirmed.

¶12. AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, SMITH AND
WALLER, JJ., CONCUR.
